In the aftermath of Hurricane Katrina, important and as yet unaddressed questions linger about the legal status and rights of hundreds of thousands of people driven from their homes, whose lives remain uprooted by the devastation. From voting rights to housing, from education to medical care, extraordinary uncertainty abounds about the future of those who have returned to New Orleans and who have not returned and are currently living in other parts of the country, uncertain whether they ever will return to the Gulf Coast.
One indication of this country’s enigmatic response to Katrina is evidenced by the very uncertainty of how we refer to those uprooted by Katrina’s destruction and chaos. This threshold question is far from a semantic one. On August 31, 2005, Katrina survivors Faye Bussard and Lionel Drummond were called “refugees” by Newsweek, despite their eligibility to vote and their obligation to pay taxes. This term was likewise used by the New York Times, the Los Angeles Times, and the Associated Press during their initial reporting. Political polar opposites, President George Bush and Reverend Jesse Jackson agreed that “refugee” was not the correct term to describe those forced to flee the deadly storm. Bush said they were not refugees but “Americans.” Jackson went further, decrying the use of the term “refugees” as racist. Most people eventually settled on the term “survivors.”
The label attached to the storm’s victims has legal consequences for their treatment and the rights they may assert. One term used in international law may well help structure and clarify the country’s understanding of the rights and status of those people displaced from their homes by Katrina: “internally displaced persons” (IDPs). This term was defined in 1998 when the United Nations (UN) issued its Guiding Principles on Internal Displacement to mark the fiftieth anniversary of the Universal Declaration of Human Rights (UDHR). The exact language:
‑For the purposes of these Principles, internally displaced persons are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.
Unlike “survivors,” those identified as IDPs have rights that are generally accepted in international law. While the United States has never adopted the UDHR, one could argue that through U.S. membership in the UN and adoption of at least ten treaties or conventions on human rights, the United States has implicitly endorsed the Guiding Principles.
Former U.S. Attorney General Ramsey Clark framed the argument in 1998:
‑The United States government pays lip service to the Declaration, but its courts have consistently refused to enforce its provisions reasoning it is not a legally binding treaty, or contract, but only a declaration. This ignores the fact that international law recognizes the provisions of the Declaration as being incorporated into customary international law which is binding on all nations.
Ramsey Clark, Address Commemorating the Fiftieth Anniversary of the Signing of the Universal Declaration of Human Rights (Baghdad, Dec. 2, 1998), www.thirdworldtraveler.com/Human_Rights/RClark_50thAnnivUDHR.html.
Following this argument, the Guiding Principles define IDP rights under international law to include equal treatment, the right to assistance from their government, and a right of voluntary return. The relevant provisions:
‑Internally displaced persons shall enjoy equally all the rights and freedoms as other persons in their country.
‑Internally displaced persons have the right to request and to receive protection and humanitarian assistance from national authorities.
‑Competent authorities have the primary duty and responsibility to establish conditions, as well as provide the means, which allow internally displaced persons to return voluntarily, in safety and with dignity, to their homes or places of habitual residence, or to resettle voluntarily in another part of the country. Such authorities shall make efforts to facilitate the reintegration of returned or resettled internally displaced persons. Special efforts should be made to ensure the full participation of internally displaced persons in the planning and management of their return or resettlement and reintegration.
The Brookings Institution–University of Bern’s Project on Internal Displacement wrote about the protection of IDP rights just four months before Hurricane Katrina:
‑Because protection is, fundamentally, a legal concept, developing a national legal framework upholding the rights of IDPs is a particularly important reflection of national responsibility as well as a vehicle for its fulfillment. In countries in all regions of the world, the adoption of legislation on internal displacement has proved valuable in defining IDPs, setting forth their rights, and establishing the obligations of governments towards them. . . . Whichever approach is taken, national legislation on internal displacement should be in line with international standards, as set forth in the Guiding Principles.
Brookings Institution–University of Bern, Addressing Internal Displacement: A Framework for National Responsibility (Apr. 2005), www.brookings.edu/fp/projects/idp/20050401_nrframework.pdf.
The Immediate Response to the Crisis
The Guiding Principles call for preparation for handling IDPs, a response that differs from merely processing disaster victims who are thought of as refugees or survivors. America was totally unprepared when one million people were displaced—the exodus from the Gulf Coast was a well-documented chaotic nightmare.
The first to leave were those with transportation and a few dollars. They fled in extended family groups, almost all missing members. Within a day, every Red Cross–“recognized” shelter and inexpensive hotel within 200 miles was full. The August 31, 2005, Newsweek reported that Lionel Drummond and his eight-year-old son drove ten hours to get from New Orleans to Baton Rouge, a sixty-mile trip. They drove through Jackson, Mississippi, and Alexandria, Lake Charles, and Kinder, Louisiana, before they found a meal and shelter in a church. Churches like Shrine of the Black Madonna in Houston, Texas, side-stepped the Red Cross official program and offered family housing where they could and gymnasiums where they had no family housing.
The next wave of IDPs came on buses. Families were separated. Newsweek reported that Faye Bussard went to the Astrodome in Houston to find her father and other relatives who she thought might have been transported there. There were no reliable lists of who was actually in the Astrodome for weeks after their arrival.
The nation scrambled to respond to the unprecedented crisis. Houston continues to have the largest population of IDPs. However, each of the fifty states offered assistance and shelter, some focusing merely on emergency relief, others coming closer to grappling with what it might mean to treat those forced out of New Orleans as IDPs.
Michigan and Louisiana are at opposite ends of the United States, but Michigan offers an example of a prospective blueprint for coordinated state government efforts for IDPs: On September 4, 2005, Governor Jennifer Granholm pledged to accept up to 10,000 Katrina evacuees and activated the State Emergency Operations Center. The governor’s office helped to organize and coordinate transport, shelter, and care for approximately 1,700 evacuees registered with the Federal Emergency Management Agency. An estimated 600 nonregistered evacuees were also transported to Michigan by private vehicles. Other actions:
• ‑“Michigan Cares, Michigan Gives,” a fundraising event on all public radio and television stations, was held in conjunction with the American Red Cross. A toll-free telephone number was provided, and the event helped garner celebrity support to raise money for disaster response.
• ‑Michigan committed to honor out-of-state Medicaid cards.
• ‑Michigan committed to pay for crisis services provided to Medicare and Medicaid patients transferred from uncertified programs.
• ‑Michigan housing was made available for evacuees.
• ‑The Michigan Department of Education sent notices to all superintendents to facilitate educational services to any evacuees who needed them.
• ‑The Michigan Civil Rights Department cautioned against use of the term “refugees” and committed to provide sensitivity training for service providers helping Katrina survivors.
When victims of a natural disaster may have legal rights and interests that need to be explored and protected, a process that may be facilitated by treating them under IDP standards, state and local bar associations can also play a role in assisting IDPs, and many did so after Katrina. For example, the Michigan State Bar Foundation recently made grants to three nonprofit legal aid programs that provided civil legal services to Hurricane Katrina evacuees in Michigan. Funding for these grants was received through the State Bar
Access to Justice Campaign’s “Katrina Appeal,” which requested donations from law firms and others.
The Status of Katrina IDPs in 2007
In New Orleans itself, much of the focus remains on the predominantly African American Ninth Ward, which serves as the symbol for tragedy that was Katrina and the resulting displacement.
Spike Lee’s riveting documentary, When the Levees Broke, painted an ugly but accurate picture. Despite $109 billion in allocations from the federal government, much of New Orleans and the Gulf Coast remain physically uninhabitable and uninhabited. The population is scattered throughout the United States in a new diaspora. Litigation continues on many issues ranging from insurance policies to the length of temporary housing payments to the bulldozing of real property in New
Orleans. Just as there was no social precedent for the crisis, no legal precedent exists to resolve its aftermath. The results of the litigation are unacceptably unpredictable.
Many have suggested that ascribing the status of IDPs and legislatively ascribing IDP principles could help to resolve the issues efficaciously. Let us examine how such an approach would affect two issues: voting rights and resettlement.
Voting Rights and Katrina’s IDPs
Despite the fact that less than 30 percent of the population of New Orleans remained in the city in February 2006, the city planned to proceed with an election scheduled for April and May 2006. In February, a suit was filed to stop the election unless the rights of the displaced—largely African American—were enforced. In a March 2, 2006, letter to U.S. Attorney General Alberto Gonzales, Bruce Gordon, then president of the National Association for the Advancement of Colored People (NAACP), argued that Louisiana election officials would be violating the 1965 Voting Rights Act by not providing alternative polling places for displaced residents. Numerous proposals were made to afford satellite voting in the states with the largest IDP populations. Yet neither the Louisiana governor nor secretary of state was persuaded. Instead, a cumbersome absentee voter process was implemented.
This decision drew international disapproval. The UN condemned the election as violating the Guiding Principles, which affirm that “[i]nternally displaced persons, whether or not they are living in camps, shall not be discriminated against as a result of their displacement in the enjoyment of . . . [t]he right to vote and to participate in governmental and public affairs. . . .” Perhaps ironically, this principle afforded Iraqis in the United States the opportunity to vote on the formation and form of a new government in Iraq.
Nationally, the leaders of the NAACP, the Urban League, the Congressional Black Caucus, and the National Bar Association opposed the electoral process and joined Jesse Jackson in protest. On April 1, more than 100 organizations rallied in New Orleans to decry the electoral process. However, the court battle, based solely on the Voting Rights Act, was unsuccessful. The Louisiana American Civil Liberties Union published a voters’ guide for the Orleans Parish elections in April and May of 2006 that included a displaced voter affidavit that was to be signed, witnessed by two people, and submitted with an absentee ballot application to vote by mail.
Despite the denial of satellite voting locations, Mayor Clarence Nagin was reelected over Lieutenant Governor Mitch Landrieu.
Given the slow pace of return to the city, many fear that hundreds of thousands of IDPs will be culled from the voter roles and erased from the civic memory before the 2008 election. Recent legislation proposes giving each displaced qualified elector six years of absentee status. If treated according to international law, the IDPs who claim New Orleans as their residence could be afforded the opportunity to participate in electoral politics and decision making for years to come.
The Challenge of Resettlement
As of December 2006, the Brookings Institution indicates that the U.S. Postal Service estimate of the New Orleans population is less than 35 percent of its 2000 census numbers. An overwhelming number of those currently absent from the city were renters in a city where rental prices have risen 39 percent since Katrina. Many were laborers in a city and state that have stopped reporting them as being on unemployment rolls. It is morally right that the return of IDPs and the restoration of New Orleans and the Gulf Coast region go hand in hand.
Nonetheless, journalist Jonathan Tilove felt compelled to ask:
‑But does a right of return exist in any legally enforceable or politically meaningful way? The question is much on the minds of activists, lawyers and lawmakers as they scramble to find precedents in existing civil rights statutes, international law or even the Napoleonic Code, or to make new laws to give those displaced by Katrina the means to get back home. The stakes are enormous for the hundreds of thousands of evacuees now in limbo. For local, state and national politics. And for millions of black Americans, for whom failure would mean that New Orleans, a cultural touchstone and among the blackest big cities in America, will emerge a smaller, whiter place.
Tilove, Jonathan, Can the Battle Cry of Katrina’s Diaspora Be Made the Law of the Land? (Nov. 8, 2005), stangoff.com/?p=246.
Decent housing fit to shelter human beings, gainful employment, adequate health care, public safety, and education are still scarce in New Orleans more than a year and a half after Katrina. In fact, as of December 2006, no plan for future public housing in New Orleans had yet been formulated. “It’s very clear there are those who are interested in reconstituting the demographic and literally the face of Orleans [Parish],” said Debo Adegbile, associate director of litigation at the NAACP Legal Defense and Educational Fund Inc.
Ultimately, if there is to be any wholesale effort to return those displaced persons and to recognize their legal status, it will likely require congressional legislation because of the massive nature of the task. The Congressional Black Caucus, Senator Barack Obama, and others introduced bills during the last Congress proposing solutions to make whole the displaced victims of Katrina, giving them a right to return to New Orleans, and offering other problem-solving plans. But the 109th Congress did not act on those proposals. It remains to be seen whether Katrina relief efforts will see action in the Congress that convened in January 2007.
Given the inherent human rights value of treating disaster victims as IDPs and affording them the legal rights and protections that attach to that label, the United States would do well to heed the call of the Brookings Institution to create a cohesive national response to future potential displacements. As for the Katrina “survivors,” identifying them as IDPs will provide a rational context for the discussion of how to meet their real needs.
As published in Human Rights, Fall 2006, Vol. 33, No. 4, p.2-4, 25