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University of Chicago Legal Forum

Abstract

In 2023, the Supreme Court decided Arizona v. Navajo Nation, finding that the United States government does not have an affirmative duty to ensure the Navajo Nation’s water security. The decision offers the Navajo two paths forward for relief: the tribe can either litigate specific water rights claims in the Colorado River Basin or lobby the President and Congress to amend an 1868 treaty, the language of which served as the basis for the holding in Navajo Nation. These paths forward are not without problems. Litigating water rights claims is costly and time-intensive, sometimes taking decades to be decided. As for lobbying Congress, only six of the 435 Members of Congress identify as Indigenous Americans. With such little representation in Congress, the ability of Indigenous Americans to affect change via the legislature may prove challenging. This Comment offers a third path forward via the executive branch, specifically through the President’s emergency powers.

This Comment evaluates two of the four statutes that authorize the President’s emergency powers: the National Emergencies Act (“NEA”) and Stafford Act. Ultimately, this Comment identifies the Stafford Act as the best prospect for the Navajo to advance their water rights, given that there is a specific process in place for tribal leaders to request an emergency declaration from the President that would release federal funds. The Stafford Act also has a more flexible understanding of what is meant by “national” and “disaster,” which might allow the Navajo to receive financing for water infrastructure and drought-resilience initiatives in the states it spans. While the Stafford Act has historically provided financial relief for rapid onset disasters, there has been a greater shift toward applying the Act to slow-onset disasters like droughts. Moreover, the Biden Administration is emphasizing a bottom-up approach by building the capacity of tribes to successfully request federal assistance. The Stafford Act thus provides a promising alternative to the Navajo to enhance their water security following Navajo Nation and in the face of a changing climate.

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