Indian Water Rights Settlements
Updated October 13, 2023
Congressional Research Service
https://crsreports.congress.gov
R44148
Indian Water Rights Settlements
Congressional Research Service
Summary
In the second half of the 19
th
century, the federal government pursued a policy of confining Indian
tribes to reservations. 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.
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.
Approval and implementation of Indian water rights settlements typically requires federal
action—often in the form of congressional approval. As of October 2023, 39 Indian water rights
settlements had been federally approved, with total estimated costs in excess of $8.5 billion
(nominal dollars). Of these, 35 settlements were approved and enacted by Congress and 4 were
administratively approved by the U.S. Departments of Justice and the Interior. One new
settlement was approved in the 117
th
Congress, and another existing settlement was amended.
Additional new and amended settlements have been proposed in the 118
th
Congress.
Historically, federal funding for settlements generally has been provided through discretionary
appropriations; Congress also has approved mandatory funding for some settlements. The
Reclamation Water Settlements Fund was created in 2009 under P.L. 111-11 as 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
set to expire in FY2034. In 2021, Congress approved and appropriated $2.5 billion for another
Indian water rights fund, the Indian Water Rights Settlement Completion Fund, in the
Infrastructure Investment and Jobs Act (P.L. 117-58).
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, approved, and funded. Many have noted that the resolution of
Indian water rights settlements is a mutually beneficial means of resolving long-standing legal
issues. Although there is little opposition to the generally stated principle that negotiated
settlements are preferable to litigation, in some cases the executive branch and/or other water
users oppose individual settlements (or elements thereof). Other questions include how to manage
cost overruns associated with these settlements and what entity should have primary
responsibility for settlement implementation and oversight.
Indian Water Rights Settlements
Congressional Research Service
Contents
Introduction ..................................................................................................................................... 1
Background ..................................................................................................................................... 1
Settlement Structure and Process .................................................................................................... 2
Steps in Settlement Process ............................................................................................................. 3
Prenegotiation ........................................................................................................................... 3
Federal Process for Prenegotiation ..................................................................................... 4
Negotiation ................................................................................................................................ 4
Settlement .................................................................................................................................. 5
Implementation ......................................................................................................................... 5
Status of Individual Indian Water Rights Settlements ..................................................................... 6
Issues Associated with Indian Water Rights Settlements ................................................................ 9
Funding Indian Water Rights Settlements ................................................................................. 9
Discretionary Funding ....................................................................................................... 11
Mandatory Funding ............................................................................................................ 11
Compliance with Environmental Laws ................................................................................... 14
Water Supply Issues ................................................................................................................ 15
Debate over the “Certainty” of Settlements ............................................................................ 15
Executive Branch Opposition to Individual Settlements ........................................................ 16
Recent Indian Water Rights Settlement Legislation ...................................................................... 16
Proposed Settlements in the 118
th
Congress ............................................................................ 17
FY2024 Budget Request ......................................................................................................... 18
Conclusion ..................................................................................................................................... 19
Tables
Table 1. Enacted Indian Water Rights Settlements .......................................................................... 6
Table 2. Indian Water Rights Settlements with Negotiation Teams Appointed ............................... 9
Contacts
Author Information ........................................................................................................................ 19
Indian Water Rights Settlements
Congressional Research Service 1
Introduction
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.
Since 1978, the federal government has entered into 39 water rights settlements with Indian tribes
and other users, and 35 of these settlements have been congressionally approved. Negotiation of
other settlements is ongoing.
Congressionally authorized settlements typically authorize funding, and in some cases provide
direct/mandatory 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, overarching
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.
1
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; typically, these claims arise out of the right of
many tribes to water resources dating to the establishment of their reservations.
2
Indian reserved
water rights were first recognized by the Supreme Court in Winters v. United States in 1908.
3
Under the Winters doctrine, when Congress reserves land (i.e., creates an Indian reservation), it
implicitly reserves water sufficient to fulfill the purpose of the reservation.
4
1
For more information, see CRS In Focus IF11944, Tribal Lands: An Overview, by Mariel J. Murray.
2
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.
3
Winters v. United States, 207 U.S. 564, 575-77 (1908).
4
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, 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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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
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 rights are
awarded 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 water 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 agree on terms for quantification of and access to tribal water
allocations, among other things. These settlements are often attractive to the parties involved
because their terms and conditions resolve long-standing uncertainty and they reduce conflict by
avoiding litigation.
5
However, there remains disagreement as to whether settlements are the most
appropriate means for resolving Indian water rights disputes.
6
Some settlement projects have been
subject to increasing costs over time. These changes complicate analyses of the tradeoffs involved
in negotiated settlements, and have in some cases resulted in the need for multiple congressional
authorizations and increased federal funding requirements.
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.
7
5
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.
6
See “Debate over the “Certainty” of Settlements,” below.
7
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)
(continued...)
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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
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).
8
DOI adopted these criteria and procedures in
1990 to establish a framework to inform the Indian water rights settlement process. DOI also
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.
9
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 is
led by 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, four steps are associated with Indian water rights settlements: prenegotiation,
negotiation, settlement, and implementation. The time between these steps 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. In some
cases, this stage includes litigation and water rights adjudications that tribes partake in before
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.
8
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.”
9
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.
Indian Water Rights Settlements
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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.
10
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.
11
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 pursuing negotiations (based on an analysis of 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, working with DOJ, assesses 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 failing to reach a 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 to arise during the
settlement process.
The actual negotiations process 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 may take years to resolve.
12
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 assistance in support of
Indian water rights claims and financial support for the federal government to defend and assert
10
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.
11
In some cases, “Criteria and Procedures” may be viewed as a general guide to the pre-negotiation process. The actual
structure and nature of the process may vary depending on the background of the settlement and the stakeholders
involved.
12
The negotiation process takes on average five years; however, settlements are negotiated on a case-specific basis, the
negotiation duration 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, 114
th
Congress, 1
st
sess., May 20, 2015.
Indian Water Rights Settlements
Congressional Research Service 5
Indian water rights.
13
Reclamation’s Native American Affairs Program also facilitates the
negotiation of water rights settlements by providing technical support and other assistance.
14
In
2016, OMB issued guidance that required 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.
15
Settlement
Once the negotiation phase is complete and parties have agreed to specific terms, the settlement
typically is presented for congressional authorization.
16
In these cases, Congress must enact the
settlement for it to become law and for projects outlined under the settlement to be eligible for
federal funding. If the Administration determines that 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.
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 typically is provided through Reclamation and/or BIA and is decided on in the
final version of the agreement. In some cases, other agencies (e.g., the U.S. Fish and Wildlife
Service) contribute based on the particular terms of a settlement.
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. 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.
For settlements that began through litigation or adjudication, the settlement parties must
reconvene to reconcile the original agreement with the congressionally approved terms of
settlement, along with any additional changes. After the Secretary of the Interior signs the revised
agreement, the adjudication court conducts a process in which it hears objections from any party.
Once the court approves the settlement, it enters a final decree and judgment.
13
Testimony of Michael L. Connor, Commissioner, U.S. Bureau of Reclamation, in U.S. Congress, Senate Committee
on Indian Affairs, Addressing the Needs of Native Communities through Indian Water Rights Settlements, hearings,
114
th
Congress, 1
st
sess., May 20, 2015.
14
Ibid.
15
Memo from John Pasquantino, 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.
16
The executive branch typically refrains from submitting formal legislative proposals for settlements to Congress and
instead comments on its support or opposition to individual settlements in testimony and/or letters of Administration
position. In some cases, settlements have been introduced for congressional approval when the negotiation phase is still
ongoing or under terms opposed by the Administration. See below section, “Executive Branch Opposition to Individual
Settlements.”
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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 implementation teams (for enacted settlements). As of early 2023,
there were 20 negotiation teams working on pending settlements and 19 implementation teams
carrying out approved settlements. Overall, the federal government has entered into 39
settlements since 1978, and Congress approved 35 of these settlements in enacted legislation. The
remaining settlements were approved administratively by the Secretary of the Interior or the U.S.
Attorney General or by judicial decree. Table 1 lists enacted settlements and Table 2 lists
negotiation teams.
Table 1. Enacted Indian Water Rights Settlements
(settlements by state and tribe)
Year
Settlement and Legislation
State
Total
Acre-
Feet
Awarded
per Year
Authorized
Federal Cost
(nominal $ in
millions)
1978
(1984,
1992,
2000)
Ak-Chin Indian Water Rights
Settlement Act, P.L. 95-328 (P.L. 98-
530, P.L. 102-497, P.L. 106-285)
AZ
85,000
$101.1
1982
(1992)
Southern Arizona Water Rights
Settlement Act, P.L. 97-293 (P.L.
102-497)
AZ
66,000
$39.8
1987
Seminole Indian Land Claims
Settlement Act of 1987, P.L. 100-
228
FL
NA
NA
1988
Salt River Pima-Maricopa Indian
Community Water Rights
Settlement Act of 1988, P.L. 100-
512
AZ
122,400
$47.5
1988
(2000)
Colorado Ute Water Rights
Settlement of 1988, P.L. 100-585
(P.L. 106-554)
CO
70,000
$49.5
1988
(2016)
San Luis Rey Indian Water Rights
Settlement Act of 1988, P.L. 100-
675 (P.L. 114-322)
CA
NA
$30.0
1990
Fort Hall Indian Water Rights Act of
1990, P.L. 101-602
ID
581,331
$22.0
1990
Fallon Paiute Shoshone Indian
Water Rights Settlement Act of
1990, P.L. 101-618
NV
10,588
$43.0
1990
Truckee-Carson-Pyramid Lake
Water Rights Act, P.L. 101-618
NV/CA
NA
$65.0
1990
(2006)
Fort McDowell Indian Community
Water Rights Settlement Act of
1990, P.L. 101-628 (P.L. 109-373)
AZ
36,350
$23.0
Indian Water Rights Settlements
Congressional Research Service 7
Year
Settlement and Legislation
State
Total
Acre-
Feet
Awarded
per Year
Authorized
Federal Cost
(nominal $ in
millions)
1992
Northern Cheyenne Indian
Reserved Water Rights Settlement
Act of 1992, P.L. 102-374
MT
83,830
$73.0
1992
(1998)
Jicarilla Apache Tribe Water
Settlement Act of 1992, P.L. 102-
441 (P.L. 105-256)
NM
40,000
$6.0
1992
(1994,
1997,
2004)
San Carlos Apache Tribe Water
Rights Settlement Act, P.L. 102-575
(P.L. 103-435, P.L. 105-18, P.L. 108-
451)
AZ
67,965
$41.4
1992
Ute Indian Rights Settlement Act of
1992, P.L. 102-575
UT
481,035
$198.5
1994
(1996)
Yavapai-Prescott Indian Tribe Water
Rights Settlement Act of 1994, P.L.
103-434 (P.L. 104-91)
AZ
1,550
$0.2
1999
Chippewa Cree Tribe of the Rocky
Boy’s Reservation Indian Reserved
Water Rights Settlement Act of
1999, P.L. 106-163
MT
20,000
$46.0
2000
Shivwits Band of the Paiute Indian
Tribe of Utah Water Rights
Settlement Act, P.L. 106-263
UT
4,000
$24.0
2003
Zuni Indian Tribe Water Rights
Settlement Act of 2003, P.L. 108-34
AZ
10,600
$19.3
2004
Snake River Water Rights Act of
2004, P.L. 108-447
ID
50,000
$121.3
2004
Arizona Water Settlements Act of
2004, P.L. 108-451
AZ
653,500
$2,328.3
a
2008
Soboba Band of Luiseño Indians
Settlement Act, P.L. 110-297
CA
9,000
$21.0
2009
Northwestern New Mexico Rural
Water Projects Act (Navajo-Gallup
Water Supply Project/Navajo
Nation Water Rights), P.L. 111-11
NM
535,330
$984.1
2009
Shoshone-Paiute Tribes of Duck
Valley Water Rights Settlement Act,
P.L. 111-11
ID/ NV
114,082
$60.0
2010
White Mountain Apache Tribe
Water Rights Quantification Act of
2010, P.L. 111-291 (P.L. 117-342)
AZ
99,000
$857.2
2010
Crow Tribe Water Rights
Settlement Act of 2010, P.L. 111-
291
MT
697,000
$461.0
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Year
Settlement and Legislation
State
Total
Acre-
Feet
Awarded
per Year
Authorized
Federal Cost
(nominal $ in
millions)
2010
Aamodt Litigation Settlement Act,
P.L. 111-291 (P.L. 116-260)
NM
6,467
$311.3
2010
Taos Pueblo Indian Water Rights
Settlement Act, P.L. 111-291
NM
9,628
$124.0
2014
Pyramid Lake Paiute Tribe–Fish
Springs Ranch Settlement Act, P.L.
113-169
NV
NA
NA
2014
Bill Williams River Water Rights
Settlement Act of 2014, P.L. 113-
223
AZ
NA
NA
2016
Pechanga Band of Luiseño Mission
Indians Water Rights Settlement
Act, P.L. 114-322
CA
4,994
$28.5
2016
Choctaw Nation of Oklahoma and
the Chickasaw Nation Water
Settlement, P.L. 114-322
OK
NA
NA
2016
Blackfeet Water Rights Settlement
Act, P.L. 114-322
MT
50,000
$420.0
2020
Montana Water Rights Protection
Act, P.L. 116-260
MT
90,000
$1,900.0
2020
Navajo-Utah Water Rights
Settlement, P.L. 116-260
UT
81,500
$210.4
2022
Hualapai Tribe Water Rights
Settlement Act (P.L. 117-349)
AZ
3,414
$317.0
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, 114
th
Congress, 1
st
sess., May 20, 2015; Bonnie G. Colby, John E. Thorson, and Sarah
Britton, Negotiating Tribal Water Rights: Fulfilling Promises in the Arid West, 1
st
ed. (Tucson: University of Arizona
Press, 2005), pp. 171-176. CRS accessed additional information and documents 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. Estimated costs reflect the most recently authorized
costs and do not reflect adjustments for inflation or cost indexing. 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.
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. For more information, see below section, “Redirection of Existing Receipt
Accounts.”
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Congressional Research Service 9
Table 2. Indian Water Rights Settlements with Negotiation Teams Appointed
Common Name of
Negotiation Team
State
Tribe(s)
Abbott-Aragon
NM
Ohkay Owingeh, Pueblo of Santa Clara
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
Fallbrook
CA
Cahuilla Band of Mission Indians, Pechanga Band of Luiseno Mission Indians,
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
Havasupai
AZ
Havasupai Tribe
Lummi-Nooksack
WA
Lummi Tribe of the Lummi Reservation, Nooksack Indian Tribe
Navajo-Little Colorado
AZ
Navajo Nation, Hopi Tribe, San Juan Southern Paiute Tribe
Nez Perce-Palouse Basin
ID
Nez Perce Tribe
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
Carlos
AZ
San Carlos Apache Tribe and Gila River Indian Community
Umatilla
OR
Confederated Tribes of the Umatilla 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: Department of the Interior, Secretary’s Indian Water Rights Office, May 2023.
Issues Associated with 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 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
Indian Water Rights Settlements
Congressional Research Service 10
federal government, often in the form of new projects and infrastructure.
17
For federal
policymakers, widely recognized challenges include identifying and enacting federal funding to
implement settlements and doing so at a level that achieves 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.
18
Partially in response to
concerns related to justifying the costs of proposed settlements, OMB issued a memorandum to
DOI and DOJ on June 23, 2016, outlining new steps to provide for increased involvement by
OMB earlier in the settlement negotiation process. OMB also stated that it would require, among
other things, that DOI and DOJ provide a description and quantification of the costs and benefits
of proposed settlements before issuing a formal letter of Administration position.
19
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.
20
Instead,
individual settlements have included 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.
21
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.
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 through
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 Indian water rights settlements have been funded are discussed below.
These sections describe different structural approaches to funding Indian water rights settlements
17
These implementation costs are in addition to the costs associated with negotiating the settlements.
18
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, 114
th
Congress, 2
nd
sess., May 24, 2016.
19
See footnote 15.
20
See below section, “Recent Indian Water Rights Settlement Legislation.”
21
For more information, see “Frequently Asked Questions for the Pojoaque Basin Regional Water System EIS,” at
https://sites.google.com/site/pbwatereis/frequently-asked-questions.
Indian Water Rights Settlements
Congressional Research Service 11
that Congress has approved, including when and how the funding is expected to be released (if
applicable).
Discretionary Funding
Discretionary spending (i.e., 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) the Pechanga Recycled Water Infrastructure
account; (2) the Pechanga ESAA Delivery Capacity account; (3) the Pechanga Water Fund
account; and (4) the 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.
22
These costs have ranged from
several hundred thousand dollars for the Yavapai-Prescott Water Rights Settlement to $1 billion
for the Confederated Salish and Kootenai Tribes (CSKT) Settlement in Montana.
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.
23
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. To date, mandatory funding for settlements generally has been through one or
more of the following mechanisms: (1) funding from the Reclamation Water Settlements Fund, a
dedicated fund created in 2010 for certain priority Indian water rights settlements; (2) funding
from the Indian Water Settlements Completion Fund, a fund created in 2021 for all settlements
authorized prior to that bill’s enactment; (3) funding for specific individual settlements; and (4)
redirection of existing receipt accounts. 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
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).
24
The fund may be used to implement a water rights settlement agreement
22
Not all enacted settlements are associated with federal funding authorizations; some only require federal approval
and/or authorize specific federal activities.
23
P.L. 106-554, §303.
24
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.
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Congressional Research Service 12
approved by Congress that resolves, in whole or in part, litigation involving the United States.
The fund also 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.
25
The act 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;
26
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.
27
Under the legislation, the amounts reserved for any settlements not approved by December 31,
2019, are available for other authorized uses of the fund. If funding remains after the authorized
priority settlements are completed and before the expiration of the fund itself, those
appropriations may be used for other authorized Indian water rights settlements. Although the last
appropriations to the fund are set 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.
28
Indian Water Settlements Completion Fund
In the Infrastructure Investment and Jobs Act (IIJA; P.L. 117-58), Congress authorized a new
Treasury fund for Indian water rights settlements.
29
In Division G, Section 70101, of the IIJA,
Congress established an Indian Water Rights Settlement Completion Fund and provided that on
the date of the IIJA’s enactment, the Secretary of the Treasury shall deposit $2.5 billion into this
fund, to remain available until expended. Subsection 70101(c) of the IIJA authorized the
Secretary of the Interior to use these funds, “for transfers to funds or accounts authorized to
receive discretionary appropriations, or to satisfy other obligations identified by the Secretary of
the Interior, under an Indian water settlement approved and authorized by an Act of Congress
before the date of enactment of this Act.”
30
This provision authorized the Secretary of the Interior
to transfer resources from the new fund to any enacted Indian water rights settlement based on
secretarial discretion, limited only by the requirement that the settlement was enacted prior to
November 15, 2021. Thirty-four of the 35 enacted settlements meet these criteria.
31
The fund
appears to be available for use on any approved settlement, regardless of its initial funding
25
43 U.S.C. §407.
26
Neither the Aamodt nor the Abeyta Settlements were authorized in P.L. 111-11; they were subsequently authorized
in P.L. 111-291.
27
Of these, the Navajo-Gallup, Aamodt, Abeyta, Blackfeet, and Crow Tribe Settlements have been approved.
28
For more information on the proposed extension of this fund, see below section, “Recent Indian Water Rights
Settlement Legislation.”
29
For more information on this legislation and implementation to date, see CRS Report R47032, Bureau of
Reclamation Provisions in the Infrastructure Investment and Jobs Act (P.L. 117-58), by Charles V. Stern and Anna E.
Normand.
30
P.L. 117-58, §70101(c).
31
The Hualapai Tribe Water Rights Settlement is the one settlement that is ineligible for this funding; it was enacted in
December 2022.
Indian Water Rights Settlements
Congressional Research Service 13
mechanism, so long as the use is approved by the Secretary. As of October 2023, DOI had
allocated $460 million from this fund for 14 settlements.
32
Mandatory Appropriations for Individual Settlements
Several individual settlements have received mandatory appropriations in recent years. For
example, provisions in the Claims Resolution Act of 2010 (P.L. 111-291) authorized and provided
direct/mandatory spending for four individual water rights settlements.
33
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 the Aamodt Settlement and $93 million in discretionary funding
subject to appropriations, and appropriated $82 million in mandatory funding;
• authorized the Abeyta Settlement and $58 million in discretionary funding
subject to appropriations, and appropriated $66 million in mandatory funding;
• authorized the Crow Tribe Water Rights Settlement and $158 million in
discretionary funding subject to appropriations, and appropriated $302 million in
mandatory funding;
• authorized the White Mountain Apache Tribe water rights quantification and $90
million in discretionary funding subject to appropriations, and appropriated
mandatory funding of approximately $203 million; 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, see previous section “Reclamation Water Settlements Fund”)
to carry out the Navajo-Gallup Water Supply Project authorized in that same
legislation.
More recently, the Montana Water Rights Protection Act, enacted in Division DD of the
Consolidated Appropriations Act, FY2021 (P.L. 116-260), approved the Confederated Salish-
Kootnai Tribe (CSKT) Water Rights Compact. Congress authorized a total of $1.9 billion for this
settlement, including $90 million per year in mandatory funding from FY2021 to FY2030.
Congress also stipulated that no funds from the Reclamation Water Settlements Fund could be
made available for this settlement until 10 years after the enactment of P.L. 116-260 and required
that any withdrawals thereafter be limited to no more than 50% of the fund’s balances.
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 funding mechanisms
differ from traditional mandatory funds, in that they make available funding without further
appropriations but 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
32
U.S. Department of the Interior, “Bipartisan Infrastructure Law Supports $580 Million Investment to Fulfill Indian
Water Rights Settlements,” press release, February 2, 2023, at https://www.doi.gov/pressreleases/bipartisan-
infrastructure-law-supports-580-million-investment-fulfill-indian-water.
33
Some of these settlements were among the priorities laid out in P.L. 111-11.
Indian Water Rights Settlements
Congressional Research Service 14
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 act
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 act stipulated that up to $250 million in LCRBDF
receipts be made available for future Indian water rights settlements in Arizona. If sufficient
LCRBDF balances are not available for all of the act’s priorities, then funds are to be awarded
according to the order in which these priorities appear in the act.
34
Compliance with Environmental Laws
The environmental impact of settlements has been an issue for federal agencies, environmental
groups, and tribes, among others. 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. In some cases, construction of settlement projects has been challenged under federal
environmental laws, such as the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C.
§§4321 et seq), the Clean Water Act (CWA; 42 U.S.C. §§7401 et seq.), the Endangered Species
Act of 1973 (ESA; 16 U.S.C. §§1531 et seq.), and the Safe Drinking Water Act (42 U.S.C. §§300f
et seq).
For example, the Animas-La Plata project,
35
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.
36
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.
37
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 with NEPA, CWA, and ESA.
38
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).
34
For additional background on this settlement, see CRS memorandum on the Arizona Water Settlements Act,
available to congressional clients from the author upon request.
35
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.
36
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.
37
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.
38
Jedediah 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.
Indian Water Rights Settlements
Congressional Research Service 15
Water Supply Issues
In addition to needing 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 from existing sources from non-tribal users to tribes, 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.
39
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, fish and wildlife) 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. 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.
40
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.
41
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 litigation.
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
limit the abilities of tribes to develop in the future.
42
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.
43
Some tribes 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 other tribes have spoken out against the idea of
negotiated settlements entirely, as they oppose negotiating their claims in exchange for
infrastructure funding. They view the process as akin to the “first treaty era,” when Indian tribes
39
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.
40
Daniel McCool, Native Waters: Contemporary Indian Water Settlements and the Second Treaty Era (Tucson, AZ:
University of Arizona Press, 2002), p. 170. Hereinafter McCool, Native Waters.
41
McCool, Native Waters, pp. 168-169.
42
McCool, Native Waters, pp. 81, 85.
43
Bonnie G. Colby, John E. Thorson, and Sarah Britton, Negotiating Tribal Water Rights: Fulfilling Promises in the
Arid West, 1
st
ed. (Tucson: University of Arizona Press, 2005), p. 13.
Indian Water Rights Settlements
Congressional Research Service 16
forfeited their lands.
44
They note that the courts may be more favorable to tribes 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 non-tribal water rights. For example, during consideration of
the CSKT Water Compact, some water users in western Montana complained that the settlement
recognized off-reservation water rights with the potential to significantly curtail non-tribal water
rights beyond those quantified in the CSKT Compact.
45
Debates regarding the certainty of settlements also encompass the certainty of federal funding to
resolve individual settlements. Several settlements, including the White Mountain Apache
Settlement and the Navajo-Gallup Settlement, have been subject to increasing costs over time that
have required additional congressional action. The costs of the White Mountain Apache
Settlement (originally authorized in P.L. 111-291) escalated in large part due to unforeseen
seepage in a planned dam; as a result, the settlement authorization has been amended multiple
times. Most recently, in P.L. 117-342, Congress authorized an additional $530 million in funding
for the settlement’s Cost Overrun Subaccount to account for escalating costs.
46
Similarly, costs for
the Navajo-Gallup Project (part of the Navajo Nation Water Rights Settlement in Northwestern
New Mexico) have reportedly escalated, leading to a proposal in the 118
th
Congress to increase
the project’s cost ceiling by $725.7 million.
47
Executive Branch Opposition to Individual Settlements
Executive branch support for settlements in general, or for settling the water rights claims of
individual tribes, does not always translate into unqualified support for proposed settlement
legislation. In some cases, settlements have been presented to Congress before they have
undergone full Administration review and approval. In other cases, the executive branch may not
have participated in the legislative drafting process. This can result in situations in which the
executive branch supports approval of a bill that would resolve a tribe’s water rights in general,
while also opposing some of its specific legislative provisions. Common concerns along these
lines include funding levels for a settlement and/or authorization of activities that the executive
branch views as outside the scope of the federal role.
Recent Indian Water Rights Settlement Legislation
Since 2009, Congress has approved 14 new Indian water rights settlements in seven acts. In some
cases, Congress approved multiple settlements as parts of larger acts of Congress; in other cases,
Congress enacted settlements as stand-alone legislation. The 117
th
Congress enacted one new
settlement, the Hualapai Tribe Water Rights Settlement Act of 2022 (P.L. 117-349). As the
number of settlements has increased, Congress also has considered and enacted amendments to
reflect updated settlement costs and other changes. The 117
th
Congress enacted amendments to
the White Mountain Apache Settlement in P.L. 117-342 that, among other things, increased the
authorized costs for that settlement by $530 million. The 117
th
Congress also enacted legislation
44
McCool, Native Waters, p. 85.
45
See, for example, Al Olszewski, “Guest Opinion: Fight Against CSKT Water Compact,” Billings Gazette, November
26, 2019.
46
See P.L. 117-342, §1(c).
47
See below section, “Proposed Settlements in the 118th Congress”
Indian Water Rights Settlements
Congressional Research Service 17
authorizing the Colorado River Indian Tribes to enter into agreements to lease their Colorado
River water to other entities (P.L. 117-343).
Proposed Settlements in the 118
th
Congress
Multiple new and amended settlements have been proposed in the 118
th
Congress. The Biden
Administration has generally supported these proposals, several of which are discussed below.
The Administration has recently testified in favor of allowing tribes to make decisions regarding
how, when, and where to develop water infrastructure, in the form of tribal trust funds in lieu of
specific water infrastructure projects.
48
Thus, several recent proposals have taken this approach.
Companion legislation in the House (H.R. 1304) and the Senate (S. 595) would authorize water
rights settlements with several Pueblos in New Mexico: the Pueblos of Acoma and Laguna in the
Rio San Jose Stream System and the Pueblos of Jemez and Zia in the Rio Jemez Stream System.
These bills would ratify and confirm the Jemez and Zia Pueblos’ water rights to over 9,000 acre-
feet per year (AFY), including 6,055 AFY for Jemez Pueblo and 3,699.4 AFY for Zia Pueblo.
Both bills would establish Trust Funds for the Pueblos in the form of a $290 million fund for the
Jemez Pueblo and $200 million for Zia Pueblo, plus indexing for inflation. These funds would be
capitalized through mandatory appropriations upon enactment of the settlement, and funding
would be available for withdrawal by the Secretary of the Interior and eligible for transfer to the
Pueblos, provided that the funds are used as outlined in the bills.
49
S. 306 would authorize a new settlement with the Tule River Tribe of California. The legislation
would resolve the Tribe’s water rights claims for up to 5,828 AFY of flows, as described in a
2007 agreement with the Tribe. It would establish a mandatory Trust Fund of $568 million
(subject to indexing) for construction ($518 million) and operations and maintenance ($50
million) expenditures. It would also transfer approximately 825.66 acres of Bureau of Land
Management Land, 1,837.46 acres of fee land owned by the Tribe, and approximately 9,037 acres
of Forest Service land to the United States, to be held in trust for the Tribe.
50
S. 1987 and H.R. 5088 would authorize a settlement with the Fort Belknap Indian Community
(composed of the Gros Ventre and Assiniboine Tribes, or Tribes) in Montana based on a 2001
Compact approved by the Montana legislature. The legislation would confirm a water right for
the Tribes of 446,000 AFY of surface water, plus groundwater, and would include an allocation of
20,000 AFY of storage from Tiber Reservoir (a Reclamation facility). The bill would authorize a
total of $1.17 billion in federal appropriations, with funding for BIA rehabilitation of the Fort
Belknap Indian Irrigation Project ($415.8 million) and Reclamation funding for the rehabilitation
and expansion of Milk River Project facilities ($300 million), as well as a trust fund ($454
million) for the Tribes to be used for domestic water infrastructure and to construct a pipeline
from Tiber Reservoir to the Reservation. The legislation would stipulate that approximately $734
48
Statement of Bryan Newland, Assistant Secretary for Indian Affairs, Department of the Interior U.S. Congress,
Senate Committee on Indian Affairs, Legislative Hearing to Receive Testimony on S. 616, S. 1898 & S. 1987, 118
th
Cong., 1
st
sess., July 12, 2023. Hereinafter, Newland Testimony, July 2023.
49
Section 105(h) of both bills provides that funds may be used for acquiring water rights or water supply; planning,
permitting, designing, engineering, constructing, reconstructing, replacing, rehabilitating, operating, or repairing water
production, treatment, or delivery infrastructure, including for domestic and municipal use, on-farm improvements, or
wastewater infrastructure; Pueblo Water Rights management and administration; watershed protection and
enhancement, support of agriculture, water-related Pueblo community welfare and economic development; and
environmental compliance in the development and construction of infrastructure in accordance with the title.
50
Newland Testimony, July 2023.
Indian Water Rights Settlements
Congressional Research Service 18
million in funding for the settlement would be authorized as discretionary funding, while $436
million would be mandatory funding.
Another proposal in the 118
th
Congress would amend an existing water rights settlement. S. 1898
and H.R. 3977, both entitled the Navajo-Gallup Water Supply Project Amendments Act of 2023,
would make significant amendments to the Northwestern New Mexico Rural Water Projects Act
(P.L. 111-11), which authorized the Navajo-Gallup Water Project (a key part of the Navajo Nation
Water Rights Settlement, also authorized in P.L. 111-11). S. 1898 and H.R. 3977 would both
increase the Navajo-Gallup Project’s authorized cost ceiling from $1.414 billion (October 2022
price levels) to $2.138 billion.
51
DOI and stakeholders have argued that the increased
authorization is needed based on cost estimates that rely on, among other things, more detailed
feasibility-level design (as opposed to the original 2007 appraisal-level design estimate), which
projects the need for an additional $689.45 million to address this cost gap.
52
The bills would also
make other changes to the original project authorization, including authorization of $6.25 million
in funding renewable energy development associated with the project and $30 million for Navajo
community connections to the project. The bills would also authorize the appropriation of $250
million for an Operations, Maintenance, and Rehabilitation (OM&R) trust fund for the Navajo
Nation,
53
as well as up to a maximum of $10 million for an OM&R trust fund for the Jicarilla
Apache Nation based on the results of an Ability to Pay Study. Finally, the bills would cap the
City of Gallup’s repayment obligation for the Navajo-Gallup Project at 25% of allocated
construction costs (which Reclamation estimates would reduce the city’s repayment obligation by
$33 million), and extend the completion deadline for the project from December 31, 2024, to
December 31, 2029.
54
FY2024 Budget Request
The FY2024 President’s budget proposed changes in how Reclamation funds its authorized
Indian water rights settlements. For the first time in decades, the budget proposed no
discretionary funding for construction in connection with individual Indian water rights
settlements, noting these needs could be met by mandatory funding in the Reclamation Water
Settlements Fund and the Indian Water Rights Settlement Completion Fund.
55
The Administration
also proposed two new, as-yet-unnamed mandatory funds for Indian Water Rights Settlements.
One of these funds would provide $2.5 billion in mandatory funding to support additional funding
for existing settlements and future settlements. The other fund would provide $340 million ($34
million per year over 10 years) to address ongoing operation, maintenance, and repair
requirements for four projects associated with existing Indian water rights settlements: the Ak
Chin Indian Water Rights Settlement Project, the Animas-La Plata Project (part of the Colorado
Ute Settlement), the Columbia and Snake River Salmon Recovery Project (part of the Nez Perce
Settlement), and the Navajo-Gallup Water Supply Project. With no discretionary funding
requested and no source of mandatory funding currently available, recently approved settlements
(e.g., the Hualapai Settlement) would not be funded for construction in FY2024 without
additional congressional appropriations.
51
Newland Testimony, July 2023.
52
Newland Testimony, July 2023.
53
This authority is proposed based on the results of a 2020 ability to pay analysis by Reclamation which found that the
Navajo Nation did not have the ability to pay for these facilities. See Newland Testimony, July 2023.
54
See S. 1898 and H.R. 3977, §3(c)(2)(B), §4(a)(1)(B).
55
Bureau of Reclamation, Bureau of Reclamation FY2024 Budget Justifications, pp. GS2-GS3.
Indian Water Rights Settlements
Congressional Research Service R44148 · VERSION 29 · UPDATED 19
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. Congress has enacted 35 settlements to date, and additional funding and
amendments for ongoing settlements and authorizations 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 (e.g., whether the executive
branch formally supports all components of a proposed settlement). In addition, the preferred
extent of federal involvement in implementing settlements, including the question of mandatory
versus discretionary funding for settlements, nonfederal cost shares, and whether the federal
government or tribes should take the lead in developing and constructing projects (including any
related cost overruns), may be central to congressional consideration of future settlements.
Author Information
Charles V. Stern
Specialist in Natural Resources Policy
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