Indian Water Rights Settlements
Updated March 29, 2019
Congressional Research Service
https://crsreports.congress.gov
R44148

Indian Water Rights Settlements

Summary
In the second half of the 19th century, the federal government pursued a policy of confining Indian
tribes to reservations. These reservations were either a portion of a tribeâ€™s aboriginal land or an
area of land taken out of the public domain and set aside for a tribe. The federal statutes and
treaties reserving such land for Indian reservations typically did not address the water needs of
these reservations, a fact that has given rise to questions and disputes regarding Indian reserved
water rights. Dating to a 1908 Supreme Court ruling, courts generally have held that many tribes
have a reserved right to water sufficient to fulfill the purpose of their reservations and that this
right took effect on the date the reservations were established. This means that, in the context of a
state water law system of prior appropriations, which is common in many U.S. western states,
many tribes have water rights senior to those of non-Indian users with water rights and access
established subsequent to the Indian reservationsâ€™ creation. Although many Indian tribes hold
senior water rights through their reservations, the quantification of these rights is undetermined in
many cases.
Tribes have pursued quantification of their water rights through both litigation and negotiated
settlements. The settlements involve negotiation between tribes, the federal government, states,
water districts, and private water users, among others. They aim to resolve conflict between rights
holders and allow the parties to determine specific terms of water allocation and use with
certainty. Over the last 50 years, negotiated settlements have been the preferred course for most
tribes because they are often less lengthy and costly than litigation. Additionally, many
stakeholders have noted that these negotiated agreements are more likely to allow tribes not only
to quantify their water rights on paper but also to procure access to these resources in the form of
infrastructure and other related expenses, at least in some cases.
After being negotiated, approval and implementation of Indian water rights settlements require
federal action. As of 2019, 36 Indian water rights settlements had been federally approved, with
total costs in excess of $5.8 billion. Of these, 32 settlements were approved and enacted by
Congress and 4 were administratively approved by the U.S. Departments of Justice and the
Interior. After being congressionally authorized, federal projects associated with approved Indian
water rights settlements generally have been implemented by the Bureau of Reclamation or the
Bureau of Indian Affairs (both within the Department of the Interior), pursuant to congressional
directions. Congress has appropriated discretionary and mandatory funding (and, in some cases,
both) for these activities, including in recent appropriations bills. In the 116th Congress,H.R. 1904
proposes to extend certain mandatory funds for these settlements in perpetuity (the funding
currently expires in FY2029).
Several individual Indian water rights settlements recently have been considered and enacted,
including three that were enacted during the 114th Congress. A primary challenge facing new
settlements is the availability of federal funds to implement ongoing and future agreements.
Indian water rights settlements often involve the construction of major new water infrastructure to
allow tribal communities to access water they hold rights to, and obtaining federal funding for
these projects can be difficult. As a result, some settlements have been renegotiated to reduce
their federal costs.
At issue is under what circumstances (if any) Congress should approve new Indian water rights
settlements and whether Congress should fund (and in some cases amend) existing settlements.
Some argue that resolution of Indian water rights settlements is a mutually beneficial means to
resolve long-standing legal issues, provide certainty of water deliveries, and reduce the federal
governmentâ€™s liability. Others argue against authorization and funding of new settlements, either
on general principle or with regard to specific individual settlements and activities.
Congressional Research Service

Indian Water Rights Settlements

This report provides an overview of Indian water rights settlements. It analyzes issues
surrounding water rights settlements and the negotiation process, as well as implementation
challenges and related issues for Congress.
Congressional Research Service

Indian Water Rights Settlements

Introduction
Since 1978, the federal government has entered into 36 water rights settlements with 40
individual Indian tribes. These Indian water rights settlements are a means of resolving ongoing
disputes related to Indian water rights between tribes, federal and state governments, and other
parties (e.g., water rights holders). The federal government is involved in these settlements
pursuant to its tribal trust responsibilities. Many of these settlements have been authorized by
Congress to provide funding for projects that allow tribes to access and develop their water
resources. At issue for Congress is not only the new settlements completing negotiations but also
how well the current process for negotiating and recommending settlements for authorization is
working. Some of the challenges raised by these settlements pertain to satisfying the federal trust
responsibility related to tribal water rights, the provision of federal funding associated with the
universe of these settlements, and the principles and expectations guiding ongoing and future
negotiation of new settlements and renegotiation of past settlements.
This report provides background on Indian water rights settlements and an overview of the
settlement process. It provides background on Indian water rights, describes the settlement
process, and summarizes enacted and potential settlements to date. It also analyzes issues related
to Indian water rights, with a focus on the role of the federal government and challenges faced in
negotiating and implementing Indian water rights settlements. Finally, it focuses on settlements in
a legislative context, including enacted and proposed legislation.
Background
Indian water rights are vested property rights and resources for which the United States has a trust
responsibility. The federal trust responsibility is a legal obligation of the United States dictating
that the federal government must protect Indian resources and assets and manage them in the
Indiansâ€™ best interest. Historically, the United States has addressed its trust responsibility by
acting as trustee in managing reserved lands, waters, resources, and assets for Indian tribes and by
providing legal counsel and representation to Indians in the courts to protect such rights,
resources, and assets. Specifically in regard to Indian water rights settlements, the United States
has fulfilled its trust responsibility to Indian tribes by assisting tribes with their claims to reserved
water rights through litigation, negotiations, and/or implementation of settlements.
The specifics of Indian water rights claims vary, but typically these claims arise out of the right of
many tribes to water resources dating to the establishment of their reservations.1 Indian reserved
water rights were first recognized by the Supreme Court in Winters v. United States in 1908.2
Under the Winters doctrine, when Congress reserves land (i.e., for an Indian reservation),
Congress implicitly reserves water sufficient to fulfill the purpose of the reservation.
In the years since the Winters decision, disputes have arisen between Indians asserting their water
rights and non-Indian water users, particularly in the western United States. In that region, the
establishment of Indian reservations (and, therefore, of Indian water rights) generally predated
settlement by non-Indians and the related large-scale development by the federal government of
water resources for non-Indian users. In most western states, water allocation takes place under a
system of prior appropriation in which water is allocated to users based on the order in which

1 Separately, some tribes also have time immemorial rights to water resources based on tribal water uses that preceded
the establishment of reservations.
2 Winters v. United States, 207 U.S. 564, 575-77 (1908).
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water rights were acquired. Under the Winters doctrine and the western system of prior
appropriation, the water rights of tribes often are senior to those of non-Indian water rights
holders because Indian water rights generally date to the creation of the reservation. However,
despite the priority of Indian reserved water rights, non-Indian populations frequently have
greater access to and allocations of water through infrastructure. This discrepancy leads to
disputes that typically have been litigated or, more recently, resolved by negotiated settlements.
Litigation of Indian water rights is a costly process that may take several decades to complete.
Even then, Indian water rights holders may not see tangible water resources and may be awarded
only paper waterâ€”that is, they may be awarded a legal claim to water but lack the financial
capital to develop those water resources. This situation occurs because, unlike Congress, the
courts cannot provide tangible wet water by authorizing new water projects and/or water-transfer
infrastructure (including funding for project development) that would allow the tribes to exploit
their rights.
As a result, negotiated settlements recently have been the preferred means of resolving many
Indian water rights disputes. Negotiated settlements afford tribes and other interested stakeholders
an opportunity to discuss and come to terms on quantification of and access to tribal water
allocations, among other things. These settlements often are attractive because they include terms
and conditions that resolve long-standing uncertainty and put an end to conflict by avoiding
litigation.3 However, there remains disagreement among some as to whether litigation or
settlements are most appropriate for resolving Indian water rights disputes.4
Settlement Structure and Process
The primary issue regarding settlement for Indian reserved water rights is quantificationâ€”
identifying the amount of water to which users hold rights within the existing systems of water
allocation in various areas in the West. However, quantification alone often is not sufficient to
secure resources for tribes. Thus, the negotiation process frequently also involves provisions to
construct water infrastructure that increases access to newly quantified resources. In addition to
providing access to wet water, some negotiated settlements have provided other benefits and legal
rights aligned with tribal values. For instance, some tribal settlements have included provisions
for environmental protection and restoration.5
The federal governmentâ€™s involvement in the Indian water rights settlement process is guided by
a 1990 policy statement established during the George H. W. Bush Administration, â€œCriteria and
Procedures for the Participation of the Federal Government in Negotiations for the Settlement of
Indian Water Rights Claimsâ€ by the Working Group on Indian Water Settlements (Working
Group) from the Department of the Interior (DOI).6 DOI adopted the criteria and procedures in

3 In many cases, the function of congressionally enacted settlements is to ratify and implement terms and conditions
that are detailed more thoroughly in agreements and compacts between stakeholders or in a tribal water code.
4 See â€œDebating the â€œCertaintyâ€ of Settlements,â€ below.
5 For example, the Snake River Water Rights Act of 2004 (P.L. 108-447) included a salmon management and habitat
restoration program. In another instance, the Truckee-Carson-Pyramid Lake Water Rights Act (P.L. 101-618)
established a fish recovery program under the provisions of the Endangered Species Act, consistent with the tribeâ€™s
historic use and reliance on two fish, the cui-ui and the Lahontan trout. For more information, see U.S. Fish and
Wildlife Service (FWS), Digest of Federal Resource Laws of Interest to the U.S. Fish and Wildlife Service: Pyramid
Lake/Truckee-Carson Water Rights Settlement, at https://www.fws.gov/laws/lawsdigest/PYRAMID.HTML.
6 Department of the Interior, â€œCriteria and Procedures for the Participation of the Federal Government in Negotiations
for the Settlement of Indian Water Rights Groups,â€ 55 Federal Register 9223, March 12, 1990. Hereinafter â€œCriteria
and Procedures.â€
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1990 to establish a framework to inform the Indian water rights settlement process and expressed
the position that negotiated settlements, rather than litigation, are the preferred method of
addressing Indian water rights. As discussed in the below section â€œSteps in Settlement Process,â€
the primary federal entities tasked with prenegotiation, negotiation, and implementation duties for
Indian water rights settlements are DOI, the Department of Justice (DOJ), and the Office of
Management and Budget (OMB).
DOI has the majority of responsibilities related to participating in and approving Indian water
rights settlements. Within DOI, two entities coordinate Indian water settlement policy. First, the
Working Group on Indian Water Settlements, established administratively in 1989 and comprised
of all Assistant Secretaries and the Solicitor (and typically chaired by a counselor to the Secretary
or Deputy Secretary), is responsible for making recommendations to the Secretary of the Interior
regarding water rights settlements, including overarching policy guidance for settlements.
Second, the Secretary of the Interiorâ€™s Indian Water Rights Office (SIWRO) is responsible for
oversight and coordination of Indian water rights settlements, including interfacing with
negotiation and implementation teams for individual settlements, as well as tribes and other
stakeholders. The SIWRO is led by a director who reports to the chair of the Working Group.7
DOI also appoints teams to work on individual Indian water rights settlements during the various
stages of the settlement process (see below section, â€œSteps in Settlement Processâ€). Each team
includes a chairman who is designated by the chair of the Working Group (i.e., the counselor to
the Secretary) and who represents the Secretary in all settlement activities. Federal teams
typically are composed of representatives from the Bureau of Indian Affairs (BIA), Bureau of
Reclamation (Reclamation), U.S. Fish and Wildlife Service, Office of the Solicitor, and DOJ. The
teams explain general federal policies on settlement and, when possible, help to develop the
parameters of a particular settlement.
Steps in Settlement Process
Broadly speaking, there are four steps associated with Indian water rights settlements:
prenegotiation, negotiation, settlement, and implementation. The time between negotiation,
settlement, and implementation can take several years. Each step, including relevant federal
involvement, is discussed below.
Prenegotiation
Prenegotiation includes any of the steps before formal settlement negotiations begin. This stage
includes, in some cases, litigation and water rights adjudications that tribes have taken part in
before deciding to pursue negotiated settlements. For instance, one of the longest-running cases in
Indian water rights history, New Mexico v. Aamodt, was first filed in 1966; multiparty
negotiations began in 2000 and took more than a decade to complete.8

7 For specific information related to the Secretary of the Interiorâ€™s Indian Water Rights Office public mission and
personnel, see http://www.doi.gov//siwro/index.cfm.
8 The final settlement was signed by all stakeholders in March 2013, following congressional enactment of the
Omnibus Public Land Management Act of 2009 (P.L. 111-11), 124 Stat. 3064, 3134-3156, the Aamodt Litigation
Settlement Act.
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The federal government also has its own prenegotiation framework that may involve a number of
phases, such as fact-finding, assessment, and briefings. More information on these roles (based on
DOIâ€™s â€œCriteria and Proceduresâ€ statement) is provided below.9
Federal Process for Prenegotiation
The fact-finding phase of the federal prenegotiation process is prompted by a formal request for
negotiations with the Secretary of the Interior by Indian tribes and nonfederal parties. During this
time, consultations take place between DOI and DOJ, which examine the legal considerations of
forming a negotiation team. If the Secretary decides to establish a team, OMB is notified with a
rationale for potential negotiations (based on potential litigation and background information of
the claim). No later than nine months after notification, the team submits a fact-finding report
containing background information, a summary and evaluation of the claims, and an analysis of
the issues of the potential settlement to the relevant federal entities (DOI, DOJ, and OMB).
During the second phase, the negotiating team works with DOJ to assess the positions of all
parties and develops a recommended federal negotiating position. The assessment should quantify
all costs for each potential outcome, including settlement and no settlement. These costs can
range from the costs for litigation to the value of the water claim itself.
During the third phase, the Working Group on Indian Water Settlements presents a recommended
negotiating position to the Secretary. In addition to submitting a position, the working group
recommends the funding contribution of the federal government, puts forth a strategy for funding
the contribution, presents any views of DOJ and OMB, and outlines positions on major issues
expected during the settlement process.
The actual negotiations process (see â€œNegotiation,â€ below) is the next phase for the Working
Group on Indian Settlements, in which OMB and DOJ are updated periodically. If there are
proposed changes to the settlement, such as in cost or conditions, the negotiating position is
revised following the procedures of the previous phases.
Negotiation
The negotiation phase can be prolonged and may take years to resolve.10 During this process, the
federal negotiation team works with the parties to reach a settlement. The process generally is
overseen by the aforementioned DOI offices, as well as by the BIAâ€™s Branch of Water Resources
and Water Rights Negotiation/Litigation Program, which provide technical and factual work in
support of Indian water rights claims and financial support for the federal government to defend
and assert Indian water rights.11 Reclamationâ€™s Native American Affairs Program also facilitates
the negotiation of water rights settlements by providing technical support and other assistance.12

9 In some cases, â€œCriteria and Proceduresâ€ may be viewed as a general guide to the prenegotiation process. The actual
structure and nature of the process may vary depending on the background of the settlement and the stakeholders
involved.
10 The average negotiation process takes five years; however, settlements are negotiated on a case-specific basis, the
duration of which may be highly variable. Testimony of Jay Weiner, in U.S. Congress, Senate Committee on Indian
Affairs, Addressing the Needs of Native Communities through Indian Water Rights Settlements, hearings, 114th
Congress, 1st sess., May 20, 2015. Hereinafter Weiner, 2015.
11 Testimony of Michael L. Connor, in U.S. Congress, Senate Committee on Indian Affairs, Addressing the Needs of
Native Communities through Indian Water Rights Settlements, hearings, 114th Congress, 1st sess., May 20, 2015.
Hereinafter Connor, 2015.
12 Ibid.
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In 2016, OMB issued guidance that it be more involved in the negotiation process, and it has laid
out a set of requirements for DOI and DOJ to provide regular written updates on individual
settlements.13
Settlement
Once the negotiation phase has been completed and parties have agreed to specific terms, the
settlement is typically presented for congressional authorization (as applicable).14 In these cases,
Congress typically must enact the settlement for it to become law and for projects outlined under
the settlement to be eligible for federal funding. If Congress is not required to approve the
settlement, the settlements generally may be approved administratively by the Secretary of the
Interior or the U.S. Attorney General or judicially by judicial decree.
Implementation
Once a settlement is approved (either administratively or by Congress), the SIWRO oversees its
implementation through federal implementation teams. Federal implementation teams function
much like federal negotiation teams, only with a focus on helping the Indian tribe(s) and other
parties implement the settlement.
For settlements that began through litigation or adjudication, the settlement parties must
reconvene to reconcile the original agreement with the settlement, along with any additional
changes. After the Secretary of the Interior signs the revised agreement, the adjudication court
conducts an inter se process in which it hears objections from any party. Once the court approves
the settlement, it enters a final decree and judgment. The actual implementation usually is carried
out by one or more federal agencies (typically Reclamation or BIA, based on terms of the
agreement) that act as project manager.15
Altogether, the â€œCriteria and Proceduresâ€ statement stresses that the cost of settlement should not
exceed the sum of calculable legal exposure and any additional costs related to federal trust
responsibility and should promote comity, economic efficiency, and tribal self-sufficiency.
Funding for the settlement itself typically is provided through Reclamation and/or BIA. However,
in some cases other agencies contribute based on the particular terms of a settlement.16
Status of Individual Indian Water
Rights Settlements
The federal government has been involved with Indian water rights settlements through
assessment, negotiation, and implementations teams (for enacted settlements) since 1990. As of

13 Memo from John Pasquqantino, Deputy Associate Director, Energy, Science and Water Division, Office of
Management and Budget, and Janet Irwin, Deputy Associate Director, Natural Resources Division, Office of
Management and Budget to Letty Belin, Senior Counselor to the Deputy Secretary, Department of the Interior, June 23,
2016.
14 In the past, the Administration has refrained from submitting formal legislative proposals for settlements to Congress
and has instead commented on its support or opposition to individual settlements in testimony and/or letters of
Administration position.
15 Darcy C. Bushnell, â€œAmerican Indian Water Rights Settlements,â€ 2012, at http://uttoncenter.unm.edu/pdfs/
American_Indian_Water_Right_Settlements.pdf.
16 In the past, such agencies have included FWS and Bureau of Land Management.
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2018, there were 21 ongoing negotiation teams working on settlements projected to cost more
than $2 billion.17 Additionally, there are 23 implementation teams active for carrying out
approved settlements. Overall, the federal government has entered into 36 settlements since 1978,
with Congress enacting 32 of these settlements. The remaining settlements were approved
administratively by the Secretary of the Interior or the U.S. Attorney General or by judicial
decree.
Table 1 below lists enacted settlements as of the date of this report, while Table 2 lists
negotiation teams as of 2017 (the last time this information was made available).
Table 1. Enacted Indian Water Rights Settlements
(settlements by state and tribe)
Total
Estimated
Acre-
Year
Settlement and Legislation
Stat
Tribes
Federal Cost
e
Feet
(nominal $ in
Awarded
millions)
per Year
1978
Ak-Chin Indian Water Rights
AZ
Ak-Chin Indian Community
85,000
$101.1
(1984,
Settlement Act, P.L. 95-328 (P.L. 98-
of Papago Indians of the
1992,
530, P.L. 102-497, P.L. 106-285)
Maricopa
2000)
1982
Southern Arizona Water Rights
AZ
San Xavier and Schuk Toak
66,000
$39.8
(1992) Settlement Act, P.L. 97-293 (P.L.
Districts, Tohono
102-497)
Oâ€™Odham Nation
1987
Seminole Indian Land Claims
FL
Seminole Tribe of Florida
NA
NA
Settlement Act of 1987, P.L. 100-
228
1988
Salt River Pima-Maricopa Indian
AZ
Salt River Pima-Maricopa
122,400
$47.5
Community Water Rights
Indian Community of the
Settlement Act of 1988, P.L. 100-
Salt River Reservation
512
1988
Colorado Ute Water Rights
CO
Southern Ute, Ute
70,000
$49.5
(2000) Settlement of 1988, P.L. 100-585
Mountain Ute Tribes (and
(P.L. 106-554)
Navajo Nation)
1988
San Luis Rey Indian Water Rights
CA
La Jol a, San Pasquale,
NA
$30.0
Settlement Act of 1988, P.L. 100-
Pauma, Pala Bands of
675 (P.L. 114-322)
Mission Indians
1990
Fort Hall Indian Water Rights Act of
ID
Fort Hall Shoshone-
581,331
$22.0
1990, P.L. 101-602
Bannock Tribes
1990
Fallon Paiute Shoshone Indian
NV
Paiute-Shoshone Tribe of
10,588
$43.0
Water Rights Settlement Act of
the Fallon Reservation and
1990, P.L. 101-618
Colony
1990
Truckee-Carson-Pyramid Lake
NV/C
Pyramid Lake Paiute Tribe
NA
$65.0
Water Rights Act, P.L. 101-618
A
1990
Fort McDowell Indian Community
AZ
Fort McDowell Indian
36,350
$23.0
(2006) Water Rights Settlement Act of
Community
1990, P.L. 101-628 (P.L. 109-373)

17Statement of Alan Mikkelsen, Senior Advisor to the Secretary, â€œHearing on S. 2154, Kickapoo Tribe in Kansas Water
Rights Settlement Agreement Act,â€ U.S. Congress, Senate Committee on Indian Affairs, 115th Cong., 2nd sess., July
18, 2018.
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Total
Estimated
Acre-
Year
Settlement and Legislation
Stat
Tribes
Federal Cost
e
Feet
(nominal $ in
Awarded
millions)
per Year
1992
Northern Cheyenne Indian
MT
Northern Cheyenne Indian
83,830
$73.0
Reserved Water Rights Settlement
Tribe
Act of 1992, P.L. 102-374
1992
Jicaril a Apache Tribe Water
NM
Jicaril a Apache Indian
40,000
$6.0
(1998) Settlement Act of 1992, P.L. 102-
Tribe
441 (P.L. 105-256)
1992
San Carlos Apache Tribe Water
AZ
San Carlos Apache Indian
67,965
$41.4
(1994,
Rights Settlement Act, P.L. 102-575
Tribe
1997,
(P.L. 103-435, P.L. 105-18, P.L. 108-
2004)
451)
1992
Ute Indian Rights Settlement Act of
UT
Northern Ute Indian Tribe;
481,035
$198.5
1992, P.L. 102-575
Ute Indian Tribe of the
Uintah and Ouray
Reservation
1994
Yavapai-Prescott Indian Tribe Water
AZ
Yavapai-Prescott Indian
1,550
$0.2
Rights Settlement Act of 1994, P.L.
Tribe
103-434 (P.L. 104-91)
1999
Chippewa Cree Tribe of the Rocky
MT
Chippewa Cree Indian
20,000
$46.0
Boyâ€™s Reservation Indian Reserved
Tribe
Water Rights Settlement Act of
1999, P.L. 106-163
2000
Shivwits Band of the Paiute Indian
UT
Shivwits Band of Paiute
4,000
$24.0
Tribe of Utah Water Rights
Indians
Settlement Act, P.L. 106-263
2003
Zuni Indian Tribe Water Rights
AZ
Zuni Indian Tribe
10,600
$19.3
Settlement Act of 2003, P.L. 108-34
2004
Snake River Water Rights Act of
ID
Nez Perce Tribe
50,000
$121.3
2004, P.L. 108-447
2004
Arizona Water Settlements Act of
AZ
Gila River Indian
653,500
$2,328.3a
2004, P.L. 108-451
Community, Tohono
Oâ€™odham Nation
2008
Soboba Band of LuiseÃ±o Indians
CA
Soboba Band of LuiseÃ±o
9,000
$21.0
Settlement Act, P.L. 110-297
Indians
2009
Northwestern New Mexico Rural
NM
Navajo Nation
535,330
$984.1
Water Projects Act (Navajo-Gallup
Water Supply Project/Navajo
Nation Water Rights), P.L. 111-11
2009
Shoshone-Paiute Tribes of Duck
ID/
Shoshone and Paiute Tribe
114,082
$60.0
Valley Water Rights Settlement Act,
NV
of Duck Valley
P.L. 111-11
2010
White Mountain Apache Tribe
AZ
White Mountain Apache
99,000
$327.2
Water Rights Quantification Act of
Tribe
2010, P.L. 111-291
2010
Crow Tribe Water Rights
MT
Crow Tribe
697,000
$461.0
Settlement Act of 2010, P.L. 111-
291
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Total
Estimated
Acre-
Year
Settlement and Legislation
Stat
Tribes
Federal Cost
e
Feet
(nominal $ in
Awarded
millions)
per Year
2010
Aamodt Litigation Settlement Act,
NM
NambÃ©, Pojoaque, San
6,467
$174.3
P.L. 111-291
Ildefonso, and Tesuque
Pueblos
2010
Taos Pueblo Indian Water Rights
NM
Taos Pueblo Tribe
9,628
$124.0
Settlement Act, P.L. 111-291
2014
Pyramid Lake Paiute Tribeâ€“Fish
NV
Pyramid Lake Paiute Tribe
NA
NA
Springs Ranch Settlement Act, P.L.
113-169
2014
Bil Wil iams River Water Rights
AZ
Hualapai Tribe
NA
NA
Settlement Act of 2014, P.L. 113-
223
2016
Pechanga Band of LuiseÃ±o Mission
CA
Pechanga Band of LuiseÃ±o
4,994
$28.5
Indians Water Rights Settlement
Mission Indians
Act, P.L. 114-322
2016
Choctaw Nation of Oklahoma and
OK
Choctaw Nation of
NA
NA
the Chickasaw Nation Water
Oklahoma and Chickasaw
Settlement, P.L. 114-322
Nation
2016
Blackfeet Water Rights Settlement
MT
Blackfeet Tribe
50,000
$420
Act, P.L. 114-322
Sources: Congressional Research Service (CRS), with information from the Department of the Interior (DOI)
and the Secretaryâ€™s Indian Water Rights Office (SIWRO); Attachments to Testimony of Steven C. Moore, in U.S.
Congress, Senate Committee on Indian Affairs, hearings, Addressing the Needs of Native Communities through Indian
Water Rights Settlements, 114th Congress, 1st sess., May 20, 2015; Bonnie G. Colby, John E. Thorson, and Sarah
Britton, Negotiating Tribal Water Rights: Fulfilling Promises in the Arid West, 1st ed. (Tucson: University of Arizona
Press, 2005), pp. 171-176. Additional information and documents were accessed through the Native American
Water Rights Settlement Project (NAWRS), University of New Mexico, NM.
Notes: NA = Not applicable. Multiple public laws listed in the table signify amendments to laws, with
amendments and corresponding years in parentheses. The federal cost of settlements is an estimate based on the
amounts specifically authorized in enacted laws, though some settlements have unknown or unidentified sources
of funding and these costs are not reflected in the chart. The column showing acre-feet awarded is based on
amounts approved through congressionally enacted settlements and reflects total amounts as detailed in
settlement agreements between stakeholders and interstate tribal compacts as well in federal legislation. These
amounts generally are subject to specific conditions and allocations per use and tribe. For more information, see
NAWRS at http://digitalrepository.unm.edu/nawrs/.
a. The Congressional Budget Office originally estimated that the 10-year cost of the legislation from FY2005
to FY2014 would be $445 mil ion. However, the total costs of the bil beyond the 10-year window are
considerably more than this amount and depend centrally on available balances in the Lower Colorado
River Basin Development Fund. Based on information from the Bureau of Reclamation in January 2017, CRS
estimated that approximately $2.328 bil ion was expected to be made available from the fund through
FY2046. For more information, see below section, â€œRedirection of Existing Receipt Accounts.â€
Table 2. Indian Water Rights Settlements with Negotiation Teams Appointed
Common Name of
State
Negotiation
Tribe(s)
Abousleman
NM
Pueblos of Jemez, Pueblo of Santa Ana, Pueblo of Zia
Agua Caliente
CA
Agua Caliente Band of Cahuila Indians
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Common Name of
State
Negotiation
Tribe(s)
Coeur dâ€™Alene
ID
Coeur dâ€™Alene Tribe
CSKT
MT
Confederated Salish and Kootenai Tribes of the Flathead Reservation
Fallbrook
Cahuil a Band of Mission Indians, Pechanga Band of Luiseno Mission Indians,
CA
Ramona Band

Fort Belknap
MT
Gros Ventre and Assiniboine Tribes
Kerr McGee
NM
Pueblos of Acoma and Laguna and Navajo Nation
Kickapoo
KS
Kickapoo Tribe
Hualapai
AZ
Hualapai Tribe
Havasupai
AZ
Havasupai Tribe
Lummi
WA
Lummi Tribe and Nooksack Tribe
Navajo-Little Colorado
AZ
Navajo Nation, Hopi Tribe, San Juan Southern Paiute Tribe
Navajo-Utah
UT
Navajo Nation
Tohono Oâ€™odham
AZ
Tohono Oâ€™odham Nation
Tonto Apache
AZ
Tonto Apache Tribe
Tule River
CA
Tule River Indian Tribe
Upper Gila River/San
AZ
San Carlos Apache Tribe and Gila River Indian Community
Carlos
Umatil a
OR
Confederated Tribes of the Umatil a Indian
Walker River
NV
Walker River Paiute Indian Tribe, Bridgeport Indian Colony, Yerington
Paiute Tribe
Yavapai-Apache
AZ
Yavapai-Apache Nation
Zuni/Ramah Navajo
NM
Pueblo of Zuni and Ramah Navajo Nation
Source: SIWRO, June 15, 2018.
Notes: This list of teams is subject to frequent change and may contain inactive negotiations.
Issues in the Consideration of Indian Water
Rights Settlements
Once the stakeholders have agreed to initiate negotiation of a settlement, a number of issues may
pose challenges to a successful negotiation and implementation of a settlement. Such challenges
may include defining and finding a source of adequate funding for a settlement and contending
with other issues within settlements, such as compliance with environmental regulations and
identification of sources and conditions for water delivery. Congress may be asked to weigh in on
one or more of these issues as they are considered.
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Funding
Considerations in Funding Indian Water Rights Settlements
The delivery of wet water (as opposed to paper water) to tribes that have enacted settlement
agreements frequently requires significant financial resources and long-term investments by the
federal government, often in the form of new projects and infrastructure.18 For federal
policymakers, a widely recognized challenge is identifying and enacting federal funding to
implement settlements while also resulting in cost-savings relative to litigation. In response to
concerns related to implementation costs, some settlements have been renegotiated over time to
decrease their estimated federal costs. For instance, legislation to authorize the Blackfeet
Compact was first introduced in 2010 and was subsequently renegotiated and revised, resulting in
a reduction to estimated federal costs by approximately $230 million (nominal dollars) compared
to the version of this legislation that was introduced in 2016.19 Partially in response to concerns
related to justifying the costs of proposed settlements, OMB issued a memo to DOI and DOJ on
June 23, 2016, outlining new steps that would provide for greater involvement by OMB earlier in
the settlement negotiation process. OMB also stated that it would require, among other things, a
description and quantification of the costs and benefits of proposed settlements by DOI and DOJ
prior to a formal letter of Administration position.20
After a preferred federal contribution is identified and agreed upon, other challenges include
identifying the source and structure of federal funding proposed for authorization. Recent
congressionally authorized Indian water rights settlements have been funded in various ways,
including through discretionary funding authorizations (i.e., authorizations that require annual
appropriations by Congress); direct or mandatory funding (i.e., spending authorizations that do
not require further appropriations); and combinations of both. In regard to mandatory funding,
some settlements have been funded individually and several others have been funded with
mandatory spending from a single account, the Reclamation Water Settlements Fund (see
â€œCombined Mandatory/Discretionary Funding,â€ below). Additionally, some have tapped
preexisting or related federal receipt accounts as the source for mandatory funding. The timing of
the release of funds also has varied widely among settlements and may in some cases depend on
expected future actions (e.g., contingent on completion of plans and/or certain nonfederal
activities).
Selected examples of how recent Indian water rights settlements have been funded are discussed
below. These sections describe different structural approaches to funding Indian water rights
settlements that have been approved by Congress in the past, including when and how the funding
is expected to be released (if applicable). They also discuss another source that is sometimes
mentioned in this context, the DOJ Judgment Fund in the Department of the Treasury.

18 These implementation costs are in addition to the costs associated with negotiating the settlements.
19 Testimony of John Bezdek, Senior Adviser to the Deputy Secretary of the U.S. Department of the Interior, in U.S.
Congress, House Natural Resources Committee, Subcommittee on Water and Power , Legislative Hearing on Water
Settlements, 114th Congress, 2nd sess., May 24, 2016.
20 See footnote 13.
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Examples of Funding Sources
Discretionary Funding
Discretionary spending, or spending that is subject to appropriations, historically has been the
most common source of funding for congressionally approved Indian water rights settlements. In
many cases, Congress has authorized the appropriations of specific sums for individual
settlements, including individual funds within the settlement. For example, the Pechanga Band of
LuiseÃ±o Mission Indians Water Rights Settlement Act (P.L. 114-322, Title III, Subtitle D)
approved the Pechanga Water Rights Settlement. This legislation established the Pechanga
Settlement Fund and four accounts within it: (1) Pechanga Recycled Water Infrastructure account;
(2) Pechanga ESAA Delivery Capacity account; (3) Pechanga Water Fund account; and (4)
Pechanga Water Quality account. These accounts are authorized to receive future discretionary
appropriations from Congress totaling to $28.5 million, and the funds must be spent by April 30,
2030.
Congress also has chosen to authorize discretionary appropriations of â€œsuch sums as may be
necessaryâ€ at times. For instance, the Colorado Ute Settlement Act Amendments of 2000 (Title
III, P.L. 106-554) authorized the implementation and the operations and maintenance of the
Animas-La Plata project and authorized Reclamation to construct these facilities using such sums
as may be necessary.21
Combined Mandatory/Discretionary Funding
Two major pieces of settlement legislation in the 111th Congress authorized a combination of
mandatory and discretionary spending for Indian water rights settlement and are discussed below.
Omnibus Public Land Management Act of 2009 (P.L. 111-11)
Title X of the Omnibus Public Land Management Act of 2009 (P.L. 111-11) authorized
mandatory spending for accounts with broadly designated purposes aligning with Indian water
rights settlements. It also included discretionary funding for a number of settlements. This
legislation created a new Treasury Fund, the Reclamation Water Settlements Fund, and scheduled
funds to be deposited and available in this account beginning in 2020. The act directed the
Secretary of the Treasury to deposit $120 million into the fund for each of the fiscal years 2020
through 2029 (for a total of $1.2 billion).22 The fund may be used to implement a water rights
settlement agreement approved by Congress that resolves, in whole or in part, litigation involving
the United States, and it may be used if the settlement agreement or implementing legislation
requires Reclamation to provide financial assistance for or to plan, design, or construct a water
project.23 The act also assigned tiers of priority to access these funds in the following order:
ï‚· First-tier priority is assigned to the Navajo-Gallup Water Supply Project (a key
element of the Navajo Nation Water Rights Settlement), the Aamodt Settlement,
and the Abeyta Settlement;24 and

21 P.L. 106-554, Â§303.
22 The funds were directed from the revenues that otherwise would be deposited into the Reclamation Water
Settlements Fund and were made available without any further appropriations.
23 43 U.S.C. Â§407.
24 Neither the Aamodt nor the Abeyta Settlements were authorized in P.L. 111-11; they were subsequently authorized
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ï‚· Second-tier priority is assigned to the settlements for the Crow Tribe, the
Blackfeet Tribe, and the Tribes of the Fort Belknap reservation, as well as the
Navajo Nation in its water rights settlement over claims in the Lower Colorado
River basin.25
If Congress does not approve and authorize projects that are given priority under the legislation
by December 31, 2019, the amounts reserved for the priorities are to revert to the Reclamation
Water Settlement Fund for any other authorized use of the fund under the act. Thus, if there were
any â€œleftoverâ€ funding, these funds could be available for other authorized Indian water rights
settlements. The fund itself is scheduled to terminate on September 30, 2034, and the unexpended
and unobligated balance of the fund will be transferred to the Treasury at that time.
In addition to the mandatory funds noted above, P.L. 111-11 also authorized $870 million in
discretionary appropriations for the Navajo-Gallup project.
Claims Resolution Act of 2010 (P.L. 111-291)
Although P.L. 111-11 provided an appropriation of mandatory funding to be used by several
settlements at a future date, provisions in the Claims Resolution Act of 2010 (P.L. 111-291)
authorized and provided direct or mandatory spending for four individual water rights
settlements.26 P.L. 111-291 also included discretionary funding for some of these settlements and
additional mandatory funding for the Navajo-Gallup project (authorized in P.L. 111-11). Among
other things, P.L. 111-291
ï‚· authorized and appropriated approximately $82 million in mandatory funding for
the Aamodt Settlement in a newly created Aamodt Settlement Pueblosâ€™ Fund and
authorized an additional $93 million in discretionary funding subject to
appropriations;
ï‚· authorized the Abeyta Settlement, appropriated $66 million in mandatory funds
for implementation of that agreement in a newly created Taos Pueblosâ€™ Water
Development Fund, and authorized an additional $58 million in discretionary
funding subject to appropriations;
ï‚· authorized the Crow Tribe Water Rights Settlement, appropriated $302 million in
mandatory funding for that agreement, and authorized an additional $158 million
in discretionary funding subject to appropriations;
ï‚· authorized the White Mountain Apache Tribe water rights quantification,
appropriated mandatory funding of approximately $203 million to multiple
sources to carry out that settlement, and authorized an additional $90 million in
discretionary appropriations; and
ï‚· authorized and appropriated a total of $180 million from FY2012 to FY2014 in
mandatory funding to the Reclamation Water Settlements Fund established under
P.L. 111-11 to carry out the Navajo-Gallup Water Supply Project authorized in
that same legislation.27

in P.L. 111-291 (see â€œClaims Resolution Act of 2010 ,â€ below).
25 Of these, the Navajo-Gallup, Aamodt, Abeyta, Blackfeet, and Crow Tribe Settlements have been approved.
26 Some of these settlements were among the priorities laid out in P.L. 111-11.
27 The figures included in this section are CRS estimates (real dollars) of the amounts provided based on the enrolled
version of the bill. They should not be considered estimates of the enacted bills or appropriations allocated for these
purposes.
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Other Funding Sources
Redirection of Existing Receipt Accounts
Other water rights settlements have been funded through additional mechanisms, including
redirection of funds accruing to existing federal receipt accounts. These funds may differ from
traditional mandatory funds in that they make available funding without further appropriations
but they also depend on the amount of funding accruing to such an account. For example, the
Arizona Water Settlements Act (P.L. 108-451) authorized water rights settlements for the Gila
River Indian Community (GRIC) and the Tohono Oâ€™odham Nation, respectively. Both water
rights settlements required funding for delivery infrastructure associated with water deliveries
from the Central Arizona Project (CAP). To fund these costs, P.L. 108-451 required that certain
CAP repayments and other receipts that accrue to the previously existing Lower Colorado River
Basin Development Fund (LCRBDF, which averages receipts of approximately $55 million per
year) be made available annually, without further appropriation (i.e., mandatory funding) for
multiple purposes related to the GRIC and Tohono Oâ€™odham settlements. For instance, the bill
required that after FY2010, deposits totaling $53 million be made into a newly established Gila
River Indian Community Operations Maintenance and Rehabilitation Trust Fund, to assist in
paying for costs associated with the delivery of CAP water. In addition to a number of other
settlement-related spending provisions, the bill stipulated that up to $250 million in LCRBDF
receipts be made available for future Indian water rights settlements in Arizona. However, if
sufficient LCRBDF balances are not available for any of the billâ€™s priorities, then funding is to be
awarded according to the order in which these priorities appear in the bill.28
Judgment Fund
Another potential source of payment for Indian water rights settlements could be the Judgment
Fund, which is a permanent indefinite appropriation available to pay all judgments against the
United States that are â€œnot otherwise provided forâ€ by another funding source.29 Certain criteria
must be met for a payment to come out of the Judgment Fund. First, the judgment must be
monetary and final, so that payments are not made from the Judgment Fund when there is a
chance the award could be changed or overturned.30 Second, the payment must be certified by the
Secretary of the Treasury, who has delegated administration of the Judgment Fund to the Bureau
of the Fiscal Service.31 Finally, payment of the judgment, award, or settlement either must be
authorized by certain statutes32 or must be a final judgment rendered by a district court, the Court
of International Trade, or the U.S. Court of Federal Claims.33 Alternatively, payment can stem
from a compromise settlement negotiated by the Attorney General (or any authorized person) if

28 For additional background on this settlement, see CRS memo on the Arizona Water Settlements Act, available to
congressional clients from the author upon request.
29 31 U.S.C. Â§1304. Congress established the Judgment Fund in 1956 (70 Stat. 694).
30 McDonald v. Schweiker, 726 F.2d 311, 313 (7th Cir. 1983). See also Comptroller General Opinion, B-279886 (Apr.
28, 1998) (concluding that a court order directing the United States to pay the costs of supervising an election rerun
was â€œmore in the nature of injunctive relief than a monetary award of damagesâ€ and therefore not payable from the
Judgment Fund).
31 31 C.F.R. Part 256. http://www.fiscal.treasury.gov/fsservices/gov/pmt/jdgFund/judgementFund_home.htm.
32 31 U.S.C. Â§1304(a)(3) (including statutes such as 31 U.S.C. Â§3723 [Small Claims Act]; 10 U.S.C. Â§2733 [Military
Claims Act]; 28 U.S.C. Â§Â§2672, 2677 [Federal Tort Claims Act]).
33 31 U.S.C. Â§1304(a)(3) (citing 28 U.S.C. Â§Â§2414, 2517).
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such settlement arises under actual litigation or is in â€œdefense of imminent litigation or suits
against the United States.â€34
Many judgments are paid from the Judgment Fund because the operating appropriations of
federal agencies are â€œgenerally not available to pay judgments.â€35
The government historically has entered into compromise settlements with Indians and Indian
tribes on a variety of legal issues, and both the federal district courts and the U.S. Court of
Federal Claims generally can hear suits brought by Indian tribes.36 The Judgment Fund has been
used to pay for some of these settlements. For example, Title I of the Claims Resolution Act of
2010 (CRA; P.L. 111-291) authorizes and implements the settlement reached in the Cobell v.
Salazar litigation.37 Under the act, Congress directed the Secretary of the Treasury to establish a
Trust Land Consolidation Fund and deposit into it $1.9 billion â€œout of the amounts appropriated
to pay final judgments, awards, and compromise settlementsâ€ under the Judgment Fund.38 For
purposes of this transfer, the act also states that the statutory conditions of the Judgment Fund
have been met.39 Notably, although the CRA included a number of separate water rights
settlements with specific Indian tribes, it appears to have set up other funding mechanisms for the
Indian tribesâ€™ water rights settlements, as it did not specifically direct payment from the Judgment
Fund.
For example, although Title III of the CRA authorized mandatory funding of approximately $203
million to multiple sources to carry out the White Mountain Apache Tribe (WMAT) Water Rights
Quantification Agreement and authorized an additional $90 million in discretionary
appropriations (see reference to this legislation in the previous section, â€œCombined
Mandatory/Discretionary Fundingâ€), it established various funds from which these moneys could
be used. One such fund is the WMAT Settlement Fund, for which Congress authorized $78.5
million to be appropriated to the Secretary of the Treasury.40 This language indicates that
Congress must act separately to appropriate funds so that the Secretary may then transfer $78.5
million into the WMAT Settlement Fund. The CRA established a second fund, the WMAT
Maintenance Fund, for which Congress mandated appropriations by directing the Secretary to
transfer $50 million â€œout of any funds in the Treasury not otherwise appropriated.â€41 This
language indicates that the funds will be transferred, without a separate appropriation, from the
U.S. Treasury General Fund, which is â€œthe largest fund in the Government ... [and] is used for all
programs that are not supported by trust, special, or revolving funds.â€42

34 Ibid.
35 Bureau of the Fiscal Service, Judgment Fund: Background, at http://www.fiscal.treasury.gov/fsservices/gov/pmt/
jdgFund/background.htm.
36 See, for example, 28 U.S.C. Â§1362 (Indian tribes and federal district court jurisdiction); 28 U.S.C. Â§1505 (Indian
claims in the U.S. Court of Federal Claims).
37 P.L. 111-291, Title I (2010). The Cobell v. Salazar litigation was brought by Elouise Cobell on behalf of herself and
similarly situated Indians for an accounting of funds held by the federal government in Individual Indian Monies (IIM)
accounts.
38 P.L. 111-291, Â§101(e)(1)(C)(i).
39 P.L. 111-291, Â§101(e)(1)(C)(ii). The act further directed the Secretary of the Treasury to deposit into the Trust
Administration Adjustment Fund of the Settlement Account $100 million â€œout of the amounts appropriated to pay final
judgments, awards, and compromise settlementsâ€ under the Judgment Fund. Similarly, the act stated that statutory
conditions of the Judgment Fund have been met for purposes of this transfer. (Â§101(j)).
40 P.L. 111-291, Â§312(b)(2).
41 P.L. 111-291, Â§312(b)(3).
42 See Office of Management and Budget, Fiscal Year 2015 Analytical Perspectives: Budget of the U.S. Government, p.
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As mentioned above, if there is another source of funding provided for by appropriation or
statute, regardless of the actual funding level, then payment from the Judgment Fund is
precluded. Courts look for an appropriation that has programmatic specificity, regardless of the
agencyâ€™s use of the funds.43 For example, if an agency already had spent an appropriated sum on
other litigation or expended the money elsewhere (as in many of the above examples of Indian
water rights settlements), then payment from the Judgment Fund for all or part of the award may
be precluded. Under these circumstances, the agency would have to seek an additional
appropriation from Congress.44 In the future, whether the Judgment Fund may be used for
payments related to Indian water settlement agreements seems to depend on the nature of the
claim, the substantive law at issue, existing sources of funding, and the forum in which the award
is made.
Compliance with Environmental Laws
The environmental impact of settlements has been an issue for federal agencies, environmental
groups, and tribes, among others. In some cases, construction of settlement projects has been
challenged under federal environmental laws, such as the National Environmental Policy Act of
196945 (NEPA; P.L. 91-190), the Clean Water Act46 (CWA; P.L. 92-500), the Endangered Species
Act of 197347 (ESA; P.L. 93-205), and the Safe Drinking Water Act48 (P.L. 93-523). Because
some settlements involve construction of new water projects (such as reservoirs, dams, pipelines,
and related facilities), some have argued that settlements pose negative consequences for water
quality, endangered species, and sensitive habitats.
For example, the Animas-La Plata project,49 originally authorized in the Colorado River Basin
Project Act of 1968 (P.L. 84-485) and later incorporated into the Colorado Ute Water Rights
Settlement Act of 1988 (P.L. 100-585), faced opposition from several groups over the alleged
violation of various environmental laws.50 Additionally, the U.S. Environmental Protection
Agency raised concerns that the project would negatively affect water quality and wetlands in

373, at https://www.gpo.gov/fdsys/pkg/BUDGET-2015-PER/pdf/BUDGET-2015-PER.pdf.
Guidance from the Government Accountability Office (GAO) indicates that when Congress provides private relief for a
claim through a private or public law and â€œdirects payment by the Secretary of the Treasury â€˜out of any money in the
Treasury not otherwise appropriatedâ€™ and does not indicate any more specific source of funds for payment, [that]
payment is charged to the permanent and indefinite account 20x1706 (Relief of Individuals and Others Obtained By
Private and Public Laws) and is made directly by the Treasury Department.â€ GAO Red Book, pp. 14-29, 14-30. It is
unclear whether the â€œpermanent and indefinite accountâ€ referenced is the Judgment Fund and whether implementation
of water settlement agreements by law would be considered granting private relief.
43 For example, courts have held that annual appropriations to the Land and Water Conservation Fund must be used
where there is a land condemnation judgment against the U.S. Park Service. United States v. 14,770.65 Acres of Land,
More or Less, Situated in Richland County, State of S.C., 616 F. Supp. 1235, 1248-1253 (D.S.C. 1985).
44 GAO, Principles of Appropriation (GAO Red Book), third edition, volume III, Chapter 14, â€œClaims Against and By
the United States,â€ pp. 14-39.
45 42 U.S.C. Â§4321.
46 42 U.S.C. Â§7401.
47 16 U.S.C. Â§1531.
48 42 U.S.C. Â§300f.
49 The project, located in southwestern Colorado and northwestern New Mexico, consists of a 270 foot dam, a lake with
123,000 acre-feet of storage, a pumping plant and pipeline to deliver water to the Navajo nation, among other things.
50 In 1990, the FWS issued a draft biological opinion on the potential threat to the Colorado pikeminnow, an
endangered fish species. Similarly, the Sierra Club Legal Defense Fund claimed that the Animas-La Plata project
would harm the Colorado pikeminnow as well as the razorback sucker. McCool, 2002, p. 146.
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New Mexico. These and other concerns stalled construction of the project for a decade.51 The
Colorado Ute Settlement Act Amendments of 2000 (P.L. 106-554) amended the original
settlement to address these concerns by significantly reducing the size and purposes of the project
and codifying compliance to NEPA, CWA, and ESA.52 Other enacted settlements that initially
encountered opposition stemming from environmental concerns include the Jicarilla Apache Tribe
Water Settlement Act of 1992 (P.L. 102-441) and the Yavapai-Prescott Indian Tribe Water Rights
Settlement Act of 1994 (P.L. 103-434).
Water Supply Issues
In addition to the need to quantify reserved water rights, a key difficulty during the negotiation
process is identifying a water source to fulfill reserved water rights. Generally, this is done
through reallocating water to tribes from existing sources, as was done for selected tribes in
Arizona and the Central Arizona Project under the Arizona Water Settlements Act of 2004 (P.L.
108-451). In some cases, settlements have provided funds for tribes to acquire water from willing
sellers.53 In addition to identifying and quantifying a water source, settlements can address the
type of water (i.e., groundwater, surface water, effluent water, stored water) and the types of uses
that are held under reserved water rights (e.g., domestic, municipal, irrigation, instream flows,
hunting and fish, etc.) as well as water quality issues.
Another common issue addressed within settlements is the question of whether to allow for the
marketing, leasing, or transfer of tribal water. Twenty-one of the 32 congressionally enacted
settlements permitted some form of marketing, leasing, or transferring, ranging from limited off-
reservation leasing to less restrictive forms of marketing.54 This exchange of water can provide
dual benefits of better water reliability in areas of scarce supplies and economic incentives to
tribes. At the same time, some tribes and state users oppose any allowance for water marketing in
settlements. Some members within tribes object to the exchange of water on religious and cultural
grounds, due to the belief that water is fundamentally attached to tribal life and identity.55 Some
non-Indians oppose allowances for water marketing in these agreements when marketing has the
potential to increase the price of water that otherwise might be available for free to downstream
water users and thus potentially could harm regional economies.56 As such, negotiating the right
to market, lease, or transfer water can be a contentious issue that results in several restrictions to
mitigate potential negative impacts.

51 During this time, Reclamation completed several supplemental environmental impact statements and made changes
to the project based on reasonable and prudent alternatives suggested by FWS. For more information, see Brian A.
Ellison, â€œBureaucratic Politics, the Bureau of Reclamation, and the Animas-La Plata Project,â€ Natural Resources
Journal, vol. 49, no. 2 (Spring 2009), pp. 381-389.
52 Jebediah S. Rogers and Andrew H. Gahan, Animas-La Plata Project, U.S. Bureau of Reclamation, History of
Reclamation Projects, 2013, p. 21, at http://www.usbr.gov/history/ProjectHistories/
Animas_La_Plata%20D1%20%5B1%5D.pdf.
53 One such example of this is the Zuni Indian Tribe Water Rights Settlement Act (P.L. 108-34), in which the Zuni
Indian Tribe Water Rights Development Fund was created for the tribe to purchase or acquire water rights rather than
realize its federal reserved water rights as is common for other settlements.
54 CRS analysis of congressionally enacted settlements and available settlement agreements and compacts.
55 McCool, p. 170.
56 McCool, pp.168-169.
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Debating the â€œCertaintyâ€ of Settlements
The certainty of Indian water rights settlements is commonly cited as a multilateral benefit for the
stakeholders involved. Supporters regularly argue that mutual benefits accrue as a result of these
agreements: tribes secure certainty in the form of water resources and legal protection, local users
and water districts receive greater certainty and stability regarding their water supplies, and the
federal and state governments are cleared from the burden of potential liability.
Some tribal communities have objected to settlements based on these principles. They have
argued that the specific, permanent quantification of their water rights through settlements may
serve to limit the abilities of tribes to develop in the future.57 Similarly, some have argued against
settlements as they may limit tribes to a particular set of uses (e.g., agriculture) and prevent
potential opportunities for greater economic yields in the future.58 Some contend that to avoid
use-based limitations, water rights settlements should focus on allowing water leasing and
marketing (see discussion in â€œWater Supply Issues,â€ above) so tribes can control and use their
water resources with greater flexibility. Still others have spoken out against the idea of negotiated
settlements entirely, as they oppose negotiating their claims in exchange for lesser water rights
and money. They view the process as akin to the â€œfirst treaty era,â€ when Indian tribes forfeited
their lands.59 They note that in the future, the courts may be more favorable and allow for greater
gains through litigation.
Nontribal users also may raise their own concerns with the certainty of water rights settlements.
Some water users have complained that provisions in certain settlements have the potential to
maintain or even increase uncertainty associated with their water rights. For example, some water
users in western Montana have raised concerns that the Confederated Salish and Kootenai Tribes
(CSKT) Water Compact recognizes off-reservation water rights with the potential to significantly
curtail nontribal water rights beyond those quantified in the CSKT Compact.
Legislative Questions
Several common questions that are raised often in regard to Indian water rights settlements are
discussed below.
Why Is the Federal Government Involved in Indian Water
Rights Settlements?
Although settlements essentially act as a quid pro quo relationship among the many stakeholders
involved, the federal governmentâ€™s role in all stages of the settlement process serves as a way to
fulfill its trust responsibility to the tribes to secure, protect, and manage the tribesâ€™ water rights.
Furthermore, many tribes have breach-of-trust claims against the federal government. Settlements
(including those that provide for federal resources and funding for new water infrastructure)
provide an opportunity for tribes to formally waive these claims and potentially resolve these
disputes.

57 McCool, pp. 81, 85.
58 Bonnie G. Colby, John E. Thorson, and Sarah Britton, Negotiating Tribal Water Rights: Fulfilling Promises in the
Arid West, 1st ed. (Tucson: University of Arizona Press, 2005), p. 13. Hereinafter Colby et al.
59 McCool, p. 85.
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Has Negotiating Settlements Been Successful?
It is difficult to make broad characterizations of the impact of Indian water rights settlements. As
of 2019, the federal government has been involved in the negotiation of more than 50 Indian
water rights settlements. As previously noted, 36 of these negotiations have resulted in federal
settlements with tribes and others. Whether these settlements have been successful depends in
part on the metric used to define success. In most cases, the settlements have secured rights and
access (or potential access) to tribal water resources. However, many of the projects to provide
this access are ongoing, so it is not possible to characterize their end result for tribes and the
federal government. Further, the extent to which settlements eventually achieve their anticipated
benefits likely will vary among individual settlements. Some (including both Indian and non-
Indian users) who support negotiating settlements in general may disagree with the contents or
outcomes of specific settlements. Others may contend that other means (i.e., litigation) are more
appropriate for solving these issues.
What Is the Funding Status of Current Enacted Settlements?
Due to the mix of discretionary and mandatory funds involved, it can be difficult to track the
funding status of Indian water rights settlements. CRS estimates that as of FY2019, the federal
government had appropriated more than $2.9 billion in nominal discretionary funding to
implement Indian water rights settlements, plus an additional $4.3 billion in mandatory funds that
have been made available or are expected to be made available in future years pursuant to
authorizing legislation.60 These appropriations have been provided to multiple agencies, including
Reclamation, BIA, the Bureau of Land Management, and the U.S. Fish and Wildlife Service. The
total amount of authorized Indian water rights settlements is not formally tracked by the
Administration. In early 2019, DOI estimated that Reclamation had a backlog of $1.3 billion in
â€œauthorized but unfundedâ€ Indian water rights settlements.61 Presumably, any future authorized
settlements without associated mandatory funding commitments would add to this total.
What Types of Activities Typically Are Authorized in Indian Water
Rights Settlements?
Settlements are negotiated on a case-by-case basis, so the details of each settlement vary and are
related to specific issues between tribes and water users in a given area. Generally, most
settlements ratify agreements and compacts that have been reached by stakeholders; authorize
reallocation and delivery of water from existing sources; and authorize construction and funding
for new water projects that are built by Reclamation (and in many cases, transferred to the tribes).
In addition to providing access to water, most settlements have resulted in tribal development
funds into which the Secretary of the Interior makes scheduled payments for the purpose of
economic development and to cover various costs of managing water projects.
As previously stated, quantification and types of use are general issues within settlements,
although additional benefits can be prominent factors as well. For example, numerous settlements
have been negotiated to include provisions that would establish programs for fish and wildlife

60 Congressional Research Service analysis of Department of Interior data.
61 This is the estimated discretionary funding requirement to complete authorized settlements, after mandatory funds
and other authorized funding streams are taking into account. Bureau of Reclamation, â€œFY2020 Presidentâ€™s Budget
Stakeholderâ€™s Briefing,â€ March 19, 2019.
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protection as well as ecosystem restoration.62 In other cases, tribes and settlements have focused
less on specific quantification and more on securing greater control of their rights or pursuing
alternative forms of gaining water rightsâ€”for example, P.L. 100-228 approved an agreement that
would allow the Seminole Tribe of Florida to administer its water rights and possess jurisdiction
to manage its water resources with a water district at no cost to the federal government. In another
case, the Zuni Indian Tribe waived certain claims to water to gain federal funds to purchase water
rights from willing sellers.63 And, in many cases, settlements have authorized conditions for water
marketing and leasing for tribes, although the degree to which this is allowed varies by
settlement.
Recent Indian Water Rights Settlement Legislation
Since 2009, Congress has enacted nine Indian water rights settlements involving 13 tribes, at an
authorized federal cost of more than $2 billion. These settlements were enacted in four bills: P.L.
111-291 (The Claims Resolution Act of 2010); P.L. 113-169 (the Pyramid Lake Paiute-Fish
Springs Ranch Settlement Act); P.L. 113-223 (the Bill Williams River Water Rights Settlement
Act of 2014); and P.L. 114-322 (the Water Infrastructure Improvements for the Nation Act, or
WIIN). Several of these settlements, including those enacted by the 113th Congress and the
Choctaw Nation and Chickasaw Nation Water Settlement Act included in WIIN, were not
associated with any new federal funding authorizations or appropriations.
An issue related to Indian water rights settlements in recent Congresses has been the
circumstances under which this type of legislation is to be transmitted and considered. During the
115th Congress, the chairman of the House Natural Resources Committee sent a letter to the
Attorney General and the Secretary of the Interior outlining the committeeâ€™s process and
expectations for considering Indian water rights settlement legislation (this process was similar to
that used by the committee dating in the 114th Congress).64These requirements included the
following:
ï‚· A statement by the relevant departments (i.e., DOI and DOJ) affirming that each
proposed settlement adheres to current executive branch criteria and procedures.
ï‚· Specific affirmation by the departments that the cost of a settlement to all parties
does not exceed the value of the existing claims as calculated by the federal
government and that federal contributions do not exceed the sum of calculable
legal exposure and federal trust or programmatic responsibilities.
ï‚· Conveyance to a court by DOJ and agreement in writing by all settling parties to
the settlement, pending a legislative resolution.

62 The Truckee-Carson-Pyramid Lake Water Rights Act (P.L. 101-618) established a fund to promote fish recovery
efforts for the cui-ui, a threatened species and culturally significant fish to the Pyramid Lake Paiute tribe. The Snake
River Water Rights Act of 2004 (P.L. 108-447) established two funds for restoring and improving fish habitats, with
a particular focus on instream flow protection for salmon. In addition to these settlements, the Shivwits Band of the
Paiute Indian Tribe of Utah Water Rights Settlement Act (P.L. 106-263) and the Zuni Indian Tribe Water Rights
Settlement Act of 2003 (P.L. 108-34) included provisions and funding for habitat acquisition and wetland restoration,
respectively.
63 P.L. 108-34.
64 Letter from Rob Bishop, Chairman, House Natural Resources Committee, to Jeff Sessions, Attorney General, and
Ryan Zinke, Secretary of the Interior, April 17, 2017, at https://naturalresources.house.gov/uploadedfiles/
04.27.17_ltr_to_ag_sessions_and_secretary_zinke_re_indian_water_rights_s.... pdf. Hereinafter, Bishop Letter.
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ï‚· Approval in writing by the departments of the legislative text needed to codify
the settlement.
ï‚· Consent to being available to testify by DOJ.
ï‚· Listing of the legal claims being settled by both departments.
It is unclear to what extent any of these requirements will continue to apply in the 116th Congress.

Navajo Utah Settlement
In the 116th CongressS. 664 H.R. 644 the Navajo Utah Water Rights Settlement Act of 2017,
would approve a settlement resolving water rights claims of the Navajo Nation on the San Juan
River in the Upper Colorado River Basin in Utah. It would authorize the Secretary of the Interior,
through Reclamation, to design and construct water development projects at a federal cost of
$198 million (June 2014 dollars, to be adjusted based on construction cost indices). After
construction is complete, the projects would be conveyed to the Navajo Nation, who would be
responsible for operations and maintenance.65 The bill would reserve tribal access (through the
project) to as much as 81,500 acre-feet per year from water sources adjacent to or within the
Navajo Nationâ€™s reservation in Utah. This depletion would be subtracted from the State of Utahâ€™s
Colorado River allocation. In return, parties (including the Navajo Nation, the United States, and
the State of Utah) would waive and release most claims associated with this settlement.66
Additionally, the Navajo Nation has agreed to subordinate its water rights under the settlement to
existing, non-Indian uses. According to the Navajo Nation, this could result in water shortages for
the tribe 11% to 46% of the time when its full 81,500 acre-feet water right is put to use.67

Although the tribes, some in Congress, and states generally have supported prior similar versions
of the Navajo Utah settlement, the Administration expressed concerns with both bills in a
December 2017 testimony before the Senate Committee on Indian Affairs.68 Specifically,
Reclamation expressed concern with the scope and cost of the Colorado River pipeline as
proposed in the Hualapai Settlement, as well as with the overall lack of state cost sharing in that
settlement relative to that which has been provided by other states in water rights settlements with
tribes. It also raised â€œsignificant concernâ€ with the billâ€™s waiver of sovereign immunity language,
which it characterized as overly broad, and noted several other concerns.69 In addition, the
Administration raised concerns with the proposed Navajo Nation settlement legislation, noting its
belief that current project plans contained deficiencies that would lead to project cost overruns.70
As a result, the Administration and the tribe reportedly agreed to an alternative implementation
arrangement in which the Navajo Nation would manage the funding and the risk for cost

65 The bill would create a separate account for operations, maintenance, and replacement funds to be used by the tribe;
it would be authorized to receive an additional $11 million in funding for these purposes, to remain available until
expended.
66 Pursuant to the legislation, the State of New Mexico would reserve rights to certain claims. See Â§10(e) of the bill.
67 U.S. Congress, Senate Committee on Indian Affairs, Hearing before the Senate Committee on Indian Affairs,
Hearing on S. 664 and S. 1770, 115th Cong., 1st sess., December 6, 2017, S. Hrg. 115-179 (Washington: GPO, 2018).
Hereafter â€œS. Hrg. 115-179.â€
68 S. Hrg. 115-179, pp. 12-16.
69 Ibid., pp 14-15.
70 Ibid., p 16.
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overruns.71 Revised legislation reflecting this change had not been released as of the date of this
report.

Reclamation Water Settlements Fund Extension
Congress is also considering the extension of mandatory funding for the Reclamation Water
Settlement Fund, which was originally enacted in 2009. H.R. 1904, the Indian Water Rights
Settlement Extension Act, would extend the aforementioned $120 million per year in mandatory
funds for the Reclamation Water Rights Settlement Fund to make these amounts available in
perpetuity. The annual transfer to this fund is currently set to begin in FY2020 and occur annual
through FY2029. The bill would allow these transfers to continue, and would not alter the priority
tiers laid out currently laid out for the fund. In absence of specific prioritized settlements, funding
would be available for other settlement agreements that require the planning, design and
construction of water supply infrastructure, project.to rehabilitate existing water delivery systems,
or projects restore fish and wildlife habitat affected by Reclamation projects.
Conclusion
Long-standing disputes over water rights and use involving Indian tribes continue to be
negotiated and settled by the executive branch and are thus likely to be an ongoing issue for
Congress. This matter includes implementation of ongoing Indian water rights settlements,
negotiation of new settlements, and consideration of these settlements for potential enactment and
subsequent funding. As of the 115th Congress, 32 settlements had been enacted since 1978, and 4
settlements had been approved administratively. Additional funding for ongoing settlements and
authorization of and appropriations for new settlements are likely to be requested in the future. In
considering Indian water rights settlements, primary issues for Congress may include the cost,
contents, and sufficiency of federally authorized efforts to settle tribal water rights claims, as well
as the circumstances under which these settlements are considered and approved by authorizing
committees and others (i.e., whether the settlements are accompanied by formal statements of
Administration support, cost estimates, etc.).

Author Information

Charles V. Stern

Specialist in Natural Resources Policy

Acknowledgments
Marnie Kremer, a former research assistant, contributed significantly to the updated version of this report.

71 Ibid., p. 16.
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Congressional Research Service
R44148 Â· VERSION 19 Â· UPDATED
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