Indian Water Rights Settlements
Updated May 22, 2020
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 tribe’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 reservations’ creation. Although many Indian tribes hold
senior water rights through their reservations, the quantification of these rights is undetermined in
many cases.
Since 1990, the Department of the Interior’s policy has been that Indian water rights should be
resolved through negotiated settlements rather than litigation. These agreements allow tribes to
quantify their water rights on paper, while also procuring access to water through infrastructure
and other related expenses. In addition to tribes and federal government representatives,
settlement negotiations may involve states, water districts, and private water users, among others.
Approval and implementation of Indian water rights settlements typically requires federal
action—often in the form of congressional approval. As of 2020, 36 Indian water rights
settlements had been federally approved, with total estimated costs in excess of $5.8 billion. Of
these, 32 settlements were approved and enacted by Congress (4 were administratively approved
by the U.S. Departments of Justice and the Interior). After congressional approval, federal
projects associated with approved Indian water rights settlements generally have been
implemented by the Bureau of Reclamation (Reclamation) or the Bureau of Indian Affairs (BIA),
pursuant to congressional directions.
Historically, federal funding for settlements has been provided through discretionary
appropriations; however, Congress also has approved mandatory funding for some settlements.
The Reclamation Water Settlements Fund was enacted in 2009 under P.L. 111-11 as a means to
provide a source of additional funding for existing and future settlements. It is scheduled to
provide $120 million per year in mandatory funding for settlements through FY2029, with the
availability of these funds currently expiring in FY2034. In the 116th Congress, H.R. 1904
proposes to extend the fund in perpetuity, whereas S. 886, as reported in the Senate, would extend
annual mandatory appropriations to the fund through FY2039 (i.e., 10 years beyond the current
authorized availability of the funds), among other things.
Several individual settlements are also proposed for congressional approval or amendment in the
116th Congress. Examples of legislation that would provide federal approval for settlements
include the Confederated Salish and Kootenai Tribes (CSKT) in Montana (S. 3019); the Hualapai
Tribe in Arizona (H.R. 2459, S. 1277); the Navajo Tribe in Utah (H.R. 644, S. 1207); the
Kickapoo Tribe in Kansas (H.R. 3491, S. 1977); and the Gros Ventre and Assiniboine Tribes of
the Fort Belknap Indian Community in Arizona (H.R. 5673, S. 3113). Congress is also
considering legislation to amend the Aamodt Water Rights Settlement Act of 2010 (H.R. 3292, S.
1875, and S. 886). One of the primary challenges facing new settlements is the availability of
federal funds and the related question of cost shares (and the type of funding used to fund these
settlements) by federal, state, local, and tribal governments.
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Indian Water Rights Settlements

At issue for Congress is under what circumstances new Indian water rights settlements should be
considered, approved, and amended, and to what extent Congress should fund 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 government’s liability. Although there is little opposition to generally stated principals
that prefer negotiated settlements to litigation, individual settlements (or elements thereof) are in
some cases opposed.
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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 among 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 whether to enact new settlements with completed
negotiations but also questions related to the current process for negotiating and recommending
settlements for authorization. Some of the challenges raised by these settlements pertain to the
provision of federal funding and cost shares associated with individual settlements, over-arching
principles and expectations guiding ongoing and future settlements, and opposition to some
settlements or specific parts of settlements by some groups.
This report provides background on Indian water rights settlements and an overview of 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
Indians’ 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), it
implicitly reserves water sufficient to fulfill the purpose of the reservation.3
In the years since the Winters decision, disputes have arisen between non-Indian water users and
Indians attempting to assert their water rights, particularly in the western United States. In that
region, the establishment of Indian reservations (and, therefore, of Indian water rights) generally

1 Separately, some tribes also have time immemorial rights to water resources based on tribal water uses that preceded
the establishment of reservations. These rights are commonly referred to as “aboriginal” water rights.
2 Winters v. United States, 207 U.S. 564, 575-77 (1908).
3 Historically, Winters doctrine has been applied mostly for surface waters, and the Supreme Court has not declared
outright that groundwater is subject to the Winters doctrine. However, recent court cases have focused on the question
of whether there is a federally reserved right to the groundwater resource for some tribes. For more information, see
CRS Insight IN10857, Federal Reserved Water Rights and Groundwater: Quantity, Quality, and Pore Space, by Peter
Folger.
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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 water rights were acquired. Under this system, the Winters water rights of tribes
are often senior to those of non-Indian water rights holders because they date to the creation of
the reservation (i.e., prior to the awarding of most state water rights). However, most tribal water
rights were not quantified when reservations were established, meaning that they must often be
adjudicated under protracted processes pursuant to state water law. There is also disagreement in
many cases over the quantification of tribal water rights and at whose expense reallocations
should be made. These and other disputes have typically been addressed through litigation 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 water”—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 have recently 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 are often attractive because they include terms
and conditions that resolve long-standing uncertainty and put an end to conflict by avoiding
litigation.4 However, there remains disagreement among some as to whether litigation or
settlements are most appropriate for resolving Indian water rights disputes.5
Settlement Structure and Process
The primary issue regarding settlement for Indian reserved water rights is quantification—
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 is often 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.6
The federal government’s involvement in the Indian water rights settlement process is guided by
a 1990 policy statement established during the George H. W. Bush Administration, “Criteria and

4 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.
5 See “Debate over the “Certainty” of Settlements,” below.
6 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 tribe’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.
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Procedures for the Participation of the Federal Government in Negotiations for the Settlement of
Indian Water Rights Claims” by the Working Group on Indian Water Settlements (Working
Group) from the Department of the Interior (DOI).7 DOI adopted the criteria and procedures in
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 “Steps in Settlement Process,”
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, 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
Interior’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.8
DOI also appoints teams to work on individual Indian water rights settlements during the various
stages of the settlement process (see below section, “Steps in Settlement Process”). Each team
includes a chair 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 are
typically 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

7 Department of the Interior, “Criteria and Procedures for the Participation of the Federal Government in Negotiations
for the Settlement of Indian Water Rights Groups,” 55 Federal Register 9223, March 12, 1990. Hereinafter “Criteria
and Procedures.”
8 For specific information related to the Secretary of the Interior’s Indian Water Rights Office public mission and
personnel, see http://www.doi.gov//siwro/index.cfm.
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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.9
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
DOI’s “Criteria and Procedures” statement) is provided below.10
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 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 “Negotiation,” below) is the next phase for the Working
Group, 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.11 During this process, the
federal negotiation team works with the parties to reach a settlement. The process is generally
overseen by the aforementioned DOI offices, as well as by the BIA’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

9 The final settlement was signed by all stakeholders in March 2013, following congressional approval in the enactment
of the Omnibus Public Land Management Act of 2009 (P.L. 111-11), 124 Stat. 3064, 3134-3156, the Aamodt
Litigation Settlement Act.
10 In some cases, “Criteria and Procedures” 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.
11 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.
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Indian Water Rights Settlements

and assert Indian water rights.12 Reclamation’s Native American Affairs Program also facilitates
the negotiation of water rights settlements by providing technical support and other assistance.13
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.14
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).15 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 may generally 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 is usually carried
out by one or more federal agencies (typically Reclamation or BIA, based on terms of the
agreement) that act as project manager.16
Altogether, the “Criteria and Procedures” 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 is typically provided through Reclamation and/or BIA. However,
in some cases other agencies contribute based on the particular terms of a settlement.17

12 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.
13 Ibid.
14 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.
15 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.
16 Darcy C. Bushnell, “American Indian Water Rights Settlements,” 2012, at http://uttoncenter.unm.edu/pdfs/
American_Indian_Water_Right_Settlements.pdf.
17 In the past, such agencies have included FWS and Bureau of Land Management.
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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
2018, there were reportedly 20 ongoing negotiation teams working on settlements projected to
cost $2-$3 billion.18 Additionally, there are currently 23 implementation teams active for carrying
out approved settlements. Overall, as of the date of this report, 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, while Table 2 lists
negotiation teams as of 2018 (the last time this information was made available).
Table 1. Enacted Indian Water Rights Settlements
(settlements by state and tribe)
Total
Acre-
Estimated
Feet
Federal Cost
Awarded
(nominal $ in
Year
Settlement and Legislation
State
Tribes
per Year
millions)
1978
Ak-Chin Indian Water Rights
AZ
Ak-Chin Indian
85,000
$101.1
(1984, Settlement Act, P.L. 95-328 (P.L. 98-
Community of Papago
1992,
530, P.L. 102-497, P.L. 106-285)
Indians of the 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)
O’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 Jolla, San Pasquale,
NA
$30.0
(2016) 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

18 U.S. Congress, Senate Committee on Indian Affairs, To Amend the Omnibus Public Land Management Act of 2009
to Make the Reclamation Water Settlements Fund Permanent, Report to accompany S. 886, 116th Cong., February 19,
2019, S.Rept. 116-189, p. 2.
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Total
Acre-
Estimated
Feet
Federal Cost
Awarded
(nominal $ in
Year
Settlement and Legislation
State
Tribes
per Year
millions)
1990
Truckee-Carson-Pyramid Lake
NV/CA Pyramid Lake Paiute Tribe
NA
$65.0
Water Rights Act, P.L. 101-618
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)
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
Jicarilla Apache Tribe Water
NM
Jicarilla 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
481,035
$198.5
1992, P.L. 102-575
Tribe; Ute Indian Tribe of
the Uintah and Ouray
Reservation
1994
Yavapai-Prescott Indian Tribe
AZ
Yavapai-Prescott Indian
1,550
$0.2
(1996) Water Rights Settlement Act of
Tribe
1994, P.L. 103-434 (P.L. 104-91)
1999
Chippewa Cree Tribe of the Rocky
MT
Chippewa Cree Indian
20,000
$46.0
Boy’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
O’odham Nation
2008
Soboba Band of Luiseño Indians
CA
Soboba Band of Luiseño
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/ NV Shoshone and Paiute Tribe
114,082
$60.0
Valley Water Rights Settlement Act,
of Duck Valley
P.L. 111-11
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Total
Acre-
Estimated
Feet
Federal Cost
Awarded
(nominal $ in
Year
Settlement and Legislation
State
Tribes
per Year
millions)
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
2010
Aamodt Litigation Settlement Act,
NM
Nambé, 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 Tribe–Fish
NV
Pyramid Lake Paiute Tribe
NA
NA
Springs Ranch Settlement Act, P.L.
113-169
2014
Bill Williams River Water Rights
AZ
Hualapai Tribe
NA
NA
Settlement Act of 2014, P.L. 113-
223
2016
Pechanga Band of Luiseño Mission
CA
Pechanga Band of Luiseño
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 Secretary’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 are generally 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 million. However, the total costs of the bill 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 billion was expected to be made available from the fund through
FY2046. For more information, see below section, “Redirection of Existing Receipt Accounts.”
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Table 2. Indian Water Rights Settlements with Negotiation Teams Appointed
Common Name of
Negotiation Team
State
Tribe(s)
Abousleman
NM
Pueblos of Jemez, Pueblo of Santa Ana, Pueblo of Zia
Agua Caliente
CA
Agua Caliente Band of Cahuila Indians
Coeur d’Alene
ID
Coeur d’Alene Tribe
CSKT
MT
Confederated Salish and Kootenai Tribes of the Flathead Reservation
Cahuilla Band of Mission Indians, Pechanga Band of Luiseno Mission Indians,
Fallbrook
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 O’odham
AZ
Tohono O’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
Umatilla
OR
Confederated Tribes of the Umatilla Indian
Walker River Paiute Indian Tribe, Bridgeport Indian Colony, Yerington
Walker River
NV
Paiute Tribe
Yavapai-Apache
AZ
Yavapai-Apache Nation
Zuni/Ramah Navajo
NM
Pueblo of Zuni and Ramah Navajo Nation
Source: SIWRO, June 15, 2018.
Note: This list of teams is subject to frequent change.
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 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. Each of these issues is discussed below in more
detail.
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
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federal government, often in the form of new projects and infrastructure.19 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 in 2016 by approximately $230 million (nominal dollars)
compared to the earlier versions of this legislation.20 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.21
A related issue is the question of nonfederal cost shares, in particular cost-share requirements for
state governments and local (i.e., non-tribal) water users, as well as those for tribes (in some
cases). No overarching cost-sharing principles have been publicly identified by recent
Administrations outside of the desire for “appropriate” cost shares by beneficiaries.22 Instead,
individual settlements have had widely variable cost shares. The magnitude of these cost shares
appears to often be based on the type of activities involved in the settlement and the potential for
parties to benefit from these activities. For example, the Aamodt Settlement, enacted in 2010, has
one of the larger statutorily identified nonfederal cost shares ($116.9 million). However, these
costs are reflective of state and county shares for the construction of a County Distribution
component of a larger Regional Water System intended to supply both tribal and non-tribal
users.23 Other settlements have typically included nonfederal cost shares of a lower magnitude or
no nonfederal cost-share requirement at all.
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
“Mandatory Funding,” below). Additionally, some have tapped preexisting or related federal
receipt accounts as the source for mandatory funding. The timing of the release of funds has also
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

19 These implementation costs are in addition to the costs associated with negotiating the settlements.
20 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.
21 See footnote 14.
22 See below section, “Recent Indian Water Rights Settlement Legislation.”
23 For more information, see “Frequently Asked Questions for the Pojoaque Basin Regional Water System EIS,”
available at https://sites.google.com/site/pbwatereis/frequently-asked-questions.
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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.
Examples of Funding Sources
Discretionary Funding
Discretionary spending, or spending that is subject to appropriations, has historically 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
Luiseño 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. Authorizations of federal discretionary funding for individual settlements, when they have
been provided, have varied widely.24 These costs have ranged from as little as $200,000 (P.L. 103-
434, Yavapai-Prescott Water Rights Settlement Act of 2004) to $870 million (at January 2007
price levels) for the Navajo Gallup Water Supply Project (authorized as part of the Navajo Nation
Water Rights Settlement under P.L. 111-11).
Congress has also chosen to authorize discretionary appropriations of “such sums as may be
necessary” 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.25
Mandatory Funding
Congress also has authorized mandatory funding for Indian water rights settlements. In some
cases, these mandatory appropriations have been made in concert with discretionary funding
authorizations. Mandatory funding has generally been in the form of one of the following options:
(1) funding from the Reclamation Water Settlements Fund, a dedicated fund created in 2010 for
Indian water rights settlements; (2) mandatory funding for specific individual settlements; and (3)
redirection of existing receipt accounts. Additionally, under certain circumstances, settlements
might be funded out of the Judgment Fund, a pre-existing fund with a permanent appropriation
that was established to pay for judgments against the United States. (However, to date, no water
rights settlements have been approved for funding from this fund.) Each of these options is
discussed below in more detail.
Reclamation Water Settlements Fund
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

24 Not all enacted settlements are associated with federal funding authorizations; some have only required federal
approval and/or authorized specific federal activities.
25 P.L. 106-554, §303.
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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 FY2020-FY2029 (for a
total of $1.2 billion).26 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.27 The act also
assigned tiers of priority to access these funds in the following order:
 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;28 and
 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.29
Under the legislation, if Congress failed to approve and authorize any of the individual
settlements with priority under the legislation by December 31, 2019, the amounts reserved for
those settlements were to become eligible for other authorized uses of the fund. Thus, if funding
remains left in the fund after the authorized priority settlements are funded, and before the
expiration of the fund itself, those appropriations could be used for other authorized Indian water
rights settlements. While the last appropriations to the fund are currently to be made in FY2029,
the fund itself is scheduled to terminate on September 30, 2034, with unexpended balances to be
transferred to the Treasury at that time.30
Claims Resolution Act of 2010 (P.L. 111-291)
Provisions in the Claims Resolution Act of 2010 (P.L. 111-291) authorized and provided
direct/mandatory spending for four individual water rights settlements.31 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
 authorized and appropriated approximately $82 million in mandatory funding for
the Aamodt Settlement in a newly created Aamodt Settlement Pueblos’ Fund and
authorized an additional $93 million in discretionary funding subject to
appropriations;
 authorized the Abeyta Settlement, appropriated $66 million in mandatory funds
for implementation of that agreement in a newly created Taos Pueblos’ Water

26 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.
27 43 U.S.C. §407.
28 Neither the Aamodt nor the Abeyta Settlements were authorized in P.L. 111-11; they were subsequently authorized
in P.L. 111-291 (see “Claims Resolution Act of 2010 ” below).
29 Of these, the Navajo-Gallup, Aamodt, Abeyta, Blackfeet, and Crow Tribe Settlements have been approved.
30 For more information on the proposed extension of this fund, see below section, “Reclamation Water Settlements
Fund Extension.”
31 Some of these settlements were among the priorities laid out in P.L. 111-11.
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Development Fund, and authorized an additional $58 million in discretionary
funding subject to appropriations;
 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;
 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
 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.
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 O’odham Nation, respectively. Both water
rights settlements required funding for 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 O’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 bill’s priorities, then funding is to be awarded
according to the order in which these priorities appear in the bill.32
Other Funding Sources: 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 “not otherwise provided for” by another funding source.33 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.34 Second, the payment must be certified by the

32 For additional background on this settlement, see CRS memo on the Arizona Water Settlements Act, available to
congressional clients from the author upon request.
33 31 U.S.C. §1304. Congress established the Judgment Fund in 1956 (70 Stat. 694).
34 McDonald v. Schweiker, 726 F.2d 311, 313 (7th Cir. 1983). See also Comptroller General Opinion, B-279886 (Apr.
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Secretary of the Treasury, who has delegated administration of the Judgment Fund to the Bureau
of the Fiscal Service.35 Finally, payment of the judgment, award, or settlement either must be
authorized by certain statutes or must be a final judgment rendered by a district court,36 the Court
of International Trade, or the U.S. Court of Federal Claims.37 Alternatively, payment can stem
from a compromise settlement negotiated by the Attorney General (or any authorized person) if
such settlement arises under actual litigation or is in “defense of imminent litigation or suits
against the United States.”38
Many judgments are paid from the Judgment Fund because the operating appropriations of
federal agencies are “generally not available to pay judgments.”39 The government has
historically 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 can
generally hear suits brought by Indian tribes.40 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.41 Under
the act, Congress directed the Secretary of the Treasury to establish a Trust Land Consolidation
Fund and deposit into it $1.9 billion “out of the amounts appropriated to pay final judgments,
awards, and compromise settlements” under the Judgment Fund.42 For purposes of this transfer,
the act also states that the statutory conditions of the Judgment Fund have been met.43 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 tribes’ water rights
settlements, as it did not specifically direct payment from the Judgment Fund. Specifically, this
language indicated that funds will be transferred, without a separate appropriation, from the U.S.
Treasury General Fund.
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
agency’s use of the funds.44 For example, if an agency had already spent an appropriated sum on

28, 1998) (concluding that a court order directing the United States to pay the costs of supervising an election rerun
was “more in the nature of injunctive relief than a monetary award of damages” and therefore not payable from the
Judgment Fund).
35 31 C.F.R. Part 256, http://www.fiscal.treasury.gov/fsservices/gov/pmt/jdgFund/judgementFund_home.htm.
36 31 U.S.C. §1304(a)(3) (including statutes such as 31 U.S.C. §3723 [Small Claims Act]; 10 U.S.C. §2733 [Military
Claims Act]; 28 U.S.C. §§2672, 2677 [Federal Tort Claims Act]).
37 31 U.S.C. §1304(a)(3) (citing 28 U.S.C. §§2414, 2517).
38 Ibid.
39 Bureau of the Fiscal Service, Judgment Fund: Background, at http://www.fiscal.treasury.gov/fsservices/gov/pmt/
jdgFund/background.htm.
40 See, for example, 28 U.S.C. §1362 (Indian tribes and federal district court jurisdiction); 28 U.S.C. §1505 (Indian
claims in the U.S. Court of Federal Claims).
41 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.
42 P.L. 111-291, §101(e)(1)(C)(i).
43 P.L. 111-291, §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 “out of the amounts appropriated to pay final
judgments, awards, and compromise settlements” under the Judgment Fund. Similarly, the act stated that statutory
conditions of the Judgment Fund have been met for purposes of this transfer (§101(j)).
44 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,
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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.45 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.
Other Issues Common to the Consideration of
Indian Water Rights Settlements
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
1969 (NEPA; P.L. 91-190),46 the Clean Water Act (CWA; P.L. 92-500),47 the Endangered Species
Act of 1973 (ESA; P.L. 93-205),48 and the Safe Drinking Water Act (P.L. 93-523).49 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,50 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.51 Additionally, the U.S. Environmental Protection
Agency raised concerns that the project would negatively affect water quality and wetlands in
New Mexico. These and other concerns stalled construction of the project for a decade.52 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

More or Less, Situated in Richland County, State of S.C., 616 F. Supp. 1235, 1248-1253 (D.S.C. 1985).
45 GAO, Principles of Appropriation (GAO Red Book), third edition, volume III, Chapter 14, “Claims Against and By
the United States,” pp. 14-39.
46 42 U.S.C. §4321.
47 42 U.S.C. §7401.
48 16 U.S.C. §1531.
49 42 U.S.C. §300f.
50 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.
51 In 1990, the U.S. Fish and Wildlife Service 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.
52 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, “Bureaucratic Politics, the Bureau of Reclamation, and the Animas-La Plata Project,” Natural Resources
Journal, vol. 49, no. 2 (Spring 2009), pp. 381-389.
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and codifying compliance to NEPA, CWA, and ESA.53 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.54 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 fishing) 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.55 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.56 Some
non-Indians oppose allowances for water marketing in these agreements when marketing has the
potential to increase the price of water that might otherwise be available for free to downstream
water users and thus could potentially harm regional economies.57 As such, negotiations about the
right to market, lease, or transfer water can be contentious and may result in restrictions on these
activities in order to mitigate potential impacts.
Debate over the “Certainty” 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

53 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.
54 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.
55 CRS analysis of congressionally enacted settlements and available settlement agreements and compacts.
56 McCool, p. 170.
57 McCool, pp. 168-169.
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serve to limit the abilities of tribes to develop in the future.58 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.59 Some contend that to avoid
use-based limitations, water rights settlements should focus on allowing water leasing and
marketing (see discussion in “Water Supply Issues,” 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 “first treaty era,” when Indian tribes forfeited
their lands.60 They note that in the future, the courts may be more favorable and allow for greater
gains through litigation.
Non-tribal users may also raise their own concerns with Indian water rights settlements. Some
water users have complained that provisions in 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 proposed Confederated Salish and Kootenai Tribes
(CSKT) Water Compact recognizes off-reservation water rights with the potential to significantly
curtail non-tribal water rights beyond those quantified in the CSKT Compact.61
Recent Indian Water Rights Settlement Legislation
Since 2009, Congress has enacted nine Indian water rights settlements 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 were not associated with any new federal funding authorizations or
appropriations. Since the 2010 enactment of P.L. 111-291, two settlements authorizing new
federal funds have been enacted: the Pechanga Band of Luiseno Mission Indians Settlement in
California (authorizing a total of $28.5 million in new federal funds) and the Blackfeet Settlement
in Montana (authorizing a total of $420 million in new federal funds).
One 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 committee’s process and
expectations for considering Indian water rights settlement legislation (this process was similar to
that used by the committee during the 114th Congress).62 In 2019, the Trump Administration
stated that the support for legislation to authorize settlements is guided by four general principles
set forth in the aforementioned 1990 Criteria and Procedures document: (1) settlements must be
consistent with the United States’ trust responsibilities; (2) Indian tribes must receive equivalent
benefits in exchange for the rights they, and the United States as trustee, release as part of a
settlement; (3) Indian tribes must obtain the ability to realize value from confirmed water rights;

58 McCool, pp. 81, 85.
59 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.
60 McCool, p. 85.
61 See, for example, Al Olszewski, “Guest opinion: Fight against CSKT Water Compact,” Billings Gazette, November
26, 2019.
62 Letter from Rob Bishop, Chairman, House Natural Resources Committee, to Jeff Sessions, Attorney General, and
Ryan Zinke, Secretary of the Interior, April 17, 2017. Hereinafter, Bishop Letter.
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and (4) settlements must contain an appropriate cost share by all parties benefiting from the
settlement.63
Several individual settlements are proposed for congressional approval or amendment in the 116th
Congress. Examples include settlements with the Confederated Salish and Kootenai Tribe
Settlement in Montana (S. 3019); the Hualapai Tribe in Arizona (H.R. 2459, S. 1277); the Navajo
Tribe in Utah (H.R. 644, S. 1207); the Kickapoo Tribe in Kansas (H.R. 3491, S. 1977 ); and the
Gros Ventre and Assiniboine Tribes of the Fort Belknap Indian Community in Arizona (H.R.
5673, S. 3113), as well as amendments to the Aamodt Water Rights Settlement Act of 2010 (H.R.
3292, S. 1875, and S. 886).
One of the primary challenges facing new settlements is the availability of federal funds and the
related question of cost shares (and the type of funding used to fund these settlements by federal,
state, local, and tribal governments. In the 116th Congress, H.R. 1904 proposes to extend the
Reclamation Water Settlement Fund in perpetuity, whereas S. 886, as reported in the Senate,
would extend annual mandatory appropriations to the fund through FY2044 (i.e., 15 years). Some
proposed individual settlements, as well as overarching legislation pertaining to all settlements
(e.g., extension of the mandatory funding under the Reclamation Water Settlements Fund), are
discussed below.
Navajo Utah Settlement
In the 116th Congress, H.R. 644 and S. 1207 would both 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 to establish a Navajo Water Development
Trust Fund and would authorize appropriations (plus any interest on these deposits) for two
accounts to be established within the fund:
1. The Navajo Water Development Projects Account, which would be authorized to
receive appropriations of $198.3 million, adjusted for inflation, for municipal
water supply projects.
2. The Navajo Operations, Maintenance, and Rehabilitation (OM&R) Account,
which would be authorized to receive appropriations of $11.1 million for water
supply facility operations and maintenance activities.
In addition, $1 million in nontrust fund appropriations would be authorized for the Department of
the Interior to implement the settlements. 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 Nation’s reservation in Utah. This depletion would be subtracted from the State of Utah’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.64
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.65

63 Testimony of Alan Mikkelsen in U.S. Congress, House Committee on Natural Resources, Water, Oceans, and
Wildlife Subcommittee, Legislative hearing on H.R. 644, H.R. 2459, and H.R. 3292, 116th Cong., 1st sess., June 26,
2019. Hereinafter “Mikkelsen 2019 Testimony.”
64 Pursuant to the legislation, the State of New Mexico would reserve rights to certain claims. See §10(e) of the bill.
65 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).
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Earlier versions of the Navajo Utah Settlement legislation (e.g., introduced versions in the 115th
Congress) adhered to the historically common practice of authorizing funds for Reclamation to
construct new water resource facilities for the tribe. However, the fund-based approach evidenced
in the current version of the legislation, in which the department would release funds from the
Trust Fund to the Navajo Nation for expenditures as needed, represents a notable departure from
this model. Advocates of the approach believe it may help to avoid cost overruns and would have
the added benefit of supplementing available funds by accumulating interest.66 While the Navajo
Nation supports this approach for this proposed settlement, it is unclear if other tribes with
pending water-rights claims would support such a fund-based template for future settlements.
Hualapai Tribe Water Rights Settlement
H.R. 2459 and S. 1277, both titled the Hualapai Tribe Water Rights Settlement Act of 2017,
would approve a settlement agreement to quantify Colorado River rights for the Hualapai Tribe in
Northern Arizona. The settlement is the second phase in settling the tribe’s water rights. The first
phase was enacted in the Bill Williams Water Rights Settlement Act of 2014 (P.L. 113-123). The
bill would authorize a total of $173.5 million for the Secretary of the Interior, through
Reclamation, to implement the settlement, including design and construction of the Hualapai
Water Project. The project would construct a pipeline to supply water for municipal, commercial,
and industrial uses on the Hualapai Reservation, which includes the Grand Canyon West resort.67
Operations and maintenance obligations would be transferred to the Hualapai tribe after
construction is complete. The negotiated settlement would reallocate 4,000 acre-feet per year of
Central Arizona Project water (i.e., water from the Colorado River) for tribal access, with no less
than 3,414 acre-feet per year delivered through the project.68 The Hualapai Tribe, the United
States, and the State of Arizona would subsequently waive and release most claims associated
with this settlement.69 It is supported by the Hualapai Tribe, the State of Arizona, and a number of
private entities that are parties to the settlement.70
In June 2019, the Trump Administration testified that it had serious concerns with the proposed
legislation.71 Among other things, the Administration testified that it had concerns related to the
size of the project and the accuracy of cost estimates in the settlement (the Administration stated
that costs would likely “greatly exceed” the authorization proposal).72 The Administration also
raised legal concerns associated with the “deleterious precedent” that would be set by the

Hereinafter “S. Hrg. 115-179.”
66 U.S. Congress, Senate Committee on Indian Affairs, To Approve the Settlement of the Water Rights Claims of the
Navajo Nation in Utah, to Authorize Construction of Projects in Connection Therewith, and for Other Purposes,
Report to Accompany S. 664, 115th Cong., 2nd sess., November 29, 2018, S.Rept. 115-401 (Washington: GPO, 2018).
67 The resort reportedly receives over 1 million visitors annually and is located 35 miles from the nearest groundwater
supply. Testimony of Dr. Damon Clarke in U.S. Congress, Senate Committee on Indian Affairs, Legislative Hearing to
Receive Testimony on the Following Bills: S.2636, S.3216, S.3222, S.3300, hearings, 114th Congress, 2nd sess.,
September 14, 2016.
68 Testimony of Dr. Damon Clarke, Chairman, Hualalapi Tribe, in U.S. Congress, House Committee on Natural
Resources, Water, Oceans, and Wildlife Subcommittee, Legislative Hearing on H.R. 644, H.R. 2459, and H.R. 3292,
116th Cong., 1st sess., June 26, 2019. Hereinafter “Clarke 2019 Testimony.”
69 See §7(a) of the bill.
70 Clarke 2019 Testimony.
71 Mikkelsen 2019 Testimony. Previous Administrations have testified against similar legislation in the 114th and 115th
Congress.
72 Mikkelsen 2019 Testimony. The Trump Administration also noted that it supported “fund-based” settlements in lieu
of construction project authorizations such as that proposed in the Hualapai legislation.
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settlement’s waiver of tribal groundwater rights protections whereby tribes and the United States
might otherwise object to groundwater uses outside of the Reservation that would affect tribal
water rights.73
Aamodt Settlement Amendments
H.R. 3292, the Aamodt Litigation Settlement Completion Act, would amend the Aamodt
Settlement Litigation Act, originally enacted in P.L. 111-291 in 2010. The original act authorized
expenditure of discretionary and mandatory funds for construction of a project, the Pojoaque
Basin Regional Water System, which would provide water to the tribes involved in the settlement
(the pueblos of Tesuque, Nambe, Pojoaque and San Ildefonso) and other related entities. The
2010 authorization approved a total of $177.3 million (in 2006 dollars, or $213 million at 2018
price levels) for the Regional Water System, of which the United States is responsible for $106.4
million ($139.8 million in 2018 dollars). According to Reclamation, the total cost to design and
construct the system is now $406 million, or $193 million more than the 2010 authorized amount
adjusted to 2018 price levels.74 Pursuant to Section 611(g) of P.L. 111-291, if costs of the project
are in excess of available amounts, the Secretary is to initiate negotiations on the proper
nonfederal cost share. According to Reclamation, the draft 611(g) document would agree to $137
million in additional federal funding, plus $56 million in nonfederal funding, which together
would make up the $193 million shortfall.
H.R. 3292 would authorize an additional $150 million in federal expenditures, from 2018 to
2028, define the aforementioned 611(g) agreement, and direct implementation of that document.
In 2019 testimony, the Trump Administration raised several concerns with the legislation,
including its lack of several “critical provisions” that the nonfederal sponsors had agreed to in the
draft 611(g) agreement and the increase in the proposed federal cost share from $137 million in
the draft agreement to $150 million in the bill.75
Confederated Salish and Kootenai Tribes (CSKT) Water
Rights Compact
S. 3019, the Montana Water Rights Protection Act, would ratify and authorize certain activities
associated with a water rights compact between the federal government, the State of Montana,
and the Confederated Salish and Kootenai Tribes (CSKT) of the Flathead Nation. The Montana
State Legislature approved the CSKT Compact in 2015. In terms of both potential federal
expenditures and the potential scope of water rights awarded, it would be among the largest
Indian water rights settlements enacted to date.
If enacted, S. 3019 would approve the CSKT Compact. The compact quantifies the CSKT’s water
rights on and off the Flathead Reservation, while also protecting some existing uses. In exchange
for the tribe’s agreement to relinquish its claims, it would receive additional water from the
Flathead River and Flathead Lake. For federal commitments, the legislation would authorize a
total of $1.9 billion in expenditures through a trust fund that would, among other things, support
rehabilitation of and construction improvements for the Flathead Indian Irrigation Project (FIIP)
and other infrastructure on tribal lands (i.e., land not served by the FIIP); administration of tribal

73 Mikkelsen 2019 Testimony.
74 Mikkelsen 2019 Testimony.
75 Mikkelsen 2019 Testimony.
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water rights, installation of infrastructure to prevent fish entrainment within the reservation;
planning, design, construction, and operations and maintenance of community water distribution
and wastewater treatment facilities; development of geothermal water resources; and other related
efforts. Under the compact, a Compact Implementation Technical Team would advise the FIIP
operator (the BIA) on the exact operational and rehabilitation improvements,76 and a Water
Management Board would administer water rights (including changes and proposed new water
uses) within the Flathead Reservation.
The CSKT settlement has generated controversy in part due to the unique nature of the Flathead
Reservation’s establishment and its current makeup. In the Hellgate Treaty of 1855, the tribes
ceded more than 20 million acres of aboriginal homeland in Western Montana to the United
States; in exchange, they received the land comprising the Flathead Indian Reservation and
certain other rights, including “the exclusive right of taking fish in all the streams running
through or bordering said reservation.”77 This means that current tribal water rights claims
include both on-reservation Winters claims that date to the reservation’s founding in 1855 and as
many as 1,094 off-reservation claims for time immemorial instream flow rights. In addition to the
many non-tribal users potentially affected by these off-reservation claims, the settlement is further
complicated by the fact that the majority of landowners on the Flathead Reservation are
themselves non-tribal members (commonly known as allottees), whose earliest water rights date
to the 1909 federal opening of the reservation to homesteading.78 Thus, decisions and
compromises made pursuant to the compact have more far-reaching impacts on non-tribal
members than many other Indian water rights settlements to date.
Although the State of Montana and the CSKT support the compact, some interests (in particular, a
number of landowners in Western Montana) have opposed the compact, in particular the new
water rights it outlines and their proposed combined state and tribal management. They also
believe that actual water rights quantified by the compact are much greater than has been publicly
stated, and they fear significant reductions to existing and historical non-tribal water use if the
compact is implemented.79 For its part, the State of Montana approved and continues to support
the compact, because it provides “a known and quality outcome” and conditions rights to make
curtailment to existing water rights unlikely.80 The state has also pointed out the likelihood of
major additional reductions absent a settlement, while acknowledging that the exact scope of the
off-reservation claims in particular would depend on the validity of individual claims.81 The state
has maintained that the current CSKT claims are largely supported by existing court precedent.82

76 The Compact Implementation Technical Team is made up of each compact party, plus the project perator and
(optionally) a representative of FIIP irrigators.
77 Treaty Between the United State and Flathead, Kootenay, and Upper Pend D’Oreilles Indians the Flatheads, Etc.,
July 16, 1855.
78 33 Stat. 302; 35 Stat. 444.
79 See for example, “SB262: The Cancerous Heart of the Daines’ Water Compact Legislation,” April 16, 2020, at
https://westernmtwaterrights.wordpress.com/2020/04/16/sb262-the-cancerous-heart-of-the-daines-water-compact-
legislation/.
80 Montana Department of Natural Resources, “CSKT-Montana Compact vs. CSKT Claims.”
81 Montana Department of Natural Resources, Report on the Proposed Water Rights Compact Between the State of
Montana and the Confederated Salish and Kootenai Tribes of the Flathead Reservation, January 2014, at
http://dnrc.mt.gov/divisions/reserved-water-rights-compact-commission/docs/cskt/watercompactreport.pdf. Hereinafter
Water Rights Compact Report.
82 Water Rights Compact Report, p. 6.
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Reclamation Water Settlements Fund Extension
Congress is also considering the extension of mandatory funding for the Reclamation Water
Settlement Fund, which originally was enacted in 2009. In the 116th Congress, H.R. 1904 and S.
886 would both extend the aforementioned $120 million per year in mandatory funds for the
Reclamation Water Rights Settlement Fund (currently set to occur annually from FY2020-
FY2029). Whereas H.R. 1904 would extend mandatory appropriations to the fund in perpetuity,
S. 886 would extend these transfers through FY2039 (i.e., 10 additional years). The latter bill also
would cap at $90 million the cumulative allocations from the fund for individual authorized
settlements. In the absence of allocations for currently prioritized settlements, funding would be
available for other settlement agreements that require the planning, design, and construction of
water supply infrastructure; projects to rehabilitate existing water delivery systems; or projects to
restore fish and wildlife habitat affected by Reclamation projects. In the context of the proposed
extension, Congress also may be interested in the early stages of mandatory funding allocations
currently scheduled to be disbursed from the fund.
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 May 2020, 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.). In addition, the preferred extent of federal
involvement in implementing settlements, including the question of whether the federal
government or tribes should take the lead in developing and constructing projects, may be a
central question under consideration in future settlements under consideration by Congress

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Author Information

Charles V. Stern

Specialist in Natural Resources Policy

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