November 7, 2005
c.2005 Newhouse News Service
WASHINGTON _ The “right of return” is the battle cry of the Katrina diaspora.
Direct and compelling, it cuts to the heart of the matter and rings of fundamental fairness: In the aftermath of a natural disaster, those displaced ought to be able to return to their rebuilt communities, ought to be a part of the rebuilding.
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.
“It’s very clear that 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., based in New York.
On Nov. 2, in the most significant development so far, members of the Congressional Black Caucus, just returned from Rosa Parks’ funeral in Detroit, dropped a 215-page bill in the House hopper _ the Hurricane Katrina Recovery, Reclamation, Restoration, Reconstruction and Reunion Act of 2005. Its centerpiece is a victim restoration fund modeled on what Congress created after Sept. 11. Its mission is to “restore each individual Hurricane Katrina claimant to his or her pre-Katrina condition.”
“We believe people have a right to return _ not only a right, but should be encouraged to return home,” Rep. Donald Payne, D-N.J., said in announcing the ambitious legislation, which culminates in a call on President Bush to present to Congress within six months a plan to end poverty in the United States within 10 years.
Politically, claims of a right of return suffer from appearing at once utopian and not utopian enough.
The poor of New Orleans _ who owned the least property, whose neighborhoods were under the most water and are the least likely to be rebuilt, and who were flung farthest in the evacuation _ will have the most trouble making their ways home. And many might not want to return to what the Black Caucus bill refers to as their “pre-Katrina condition.”
“The right of return has to grow for me,” said Barbara Major, a longtime community organizer and director of the St. Thomas Health Clinic, whom Mayor Ray Nagin appointed co-chair of the Bring New Orleans Back Commission. “I want people to return to something better, not a right to return to what was.”
“Why,” asked Lance Hill, executive director of Tulane University’s Southern Institute for Education and Research, “would you bring your kids back to a school that smelled like piss, with no water fountain and no books?”
Especially, he added, if you’ve now seen elsewhere that it doesn’t have to be that way. “Everybody could be brought back to better lives, better homes, better schools, better jobs,” Hill said. “What is missing is the will and the will can only come from the government.”
Black Caucus members made the same point. The Gulf Coast, Payne said, is as deserving of a Marshall Plan as Europe was after World War II.
Black Americans especially need not be from New Orleans to take its future personally. The states of Louisiana, Mississippi and Alabama have the most deeply rooted black communities in the United States.
“We must draw the line in the sand in New Orleans,” Ron Daniels, director of the New York-based Center for Constitutional Rights, said at a recent press conference on the terrace of the Cannon House Office Building. With him were Rep. Cynthia McKinney, D-Ga., and Lennox Yearwood, head of the Washington-based Hip Hop Caucus, who in September roused a crowd at a Black Caucus session on rebuilding New Orleans with his call for “revolution.”
In the meantime, decisions are being made daily, based on the right to a return on investment for developers and landowners.
“If market forces control, then (New Orleans) will be an all-white city,” said Judith Browne, co-director of the Advancement Project, founded to promote a movement for racial justice, and counsel to the People’s Hurricane Relief Fund and Oversight Coalition, formed in the immediate wake of Katrina.
Browne is looking to the “abuse of rights” provision in the Napoleonic Code, which applies in Louisiana, requiring elemental fairness in landlord-tenant dealings. The provision has been interpreted very narrowly in the past, she said, but in these uncharted legal waters, “throwing people out so you can raise the rents in a time of disaster and a shortage of housing clearly flies in the face of elementary fairness.”
And, she wonders, can evicting black tenants, rebuilding and raising rents for a new white clientele pass muster under Fair Housing statutes?
Under Section 5 of the Voting Rights Act, political jurisdictions in Louisiana, Mississippi, Alabama and most other Southern states must get federal “pre-clearance” before making any change in election procedures or districts that might adversely affect minority voters. Yet Katrina, the NAACP’s Adegbile observes, is thoroughly redrawing the political map in ways that will undermine black political power in the region.
In reaction, Rep. Artur Davis, D-Ala., filed a bill, since folded into the Black Caucus legislation, to allow evacuees to vote absentee in their home districts through 2008. And Louisiana Secretary of State Al Ater has said he would take a “broad” view of such questions. “A natural disaster, an act of God, should not be used to change the politics of a place,” Ater said at a forum in Washington on voting rights after Katrina.
The clearest articulation of a right of return is in the international arena. The United Nations Guiding Principles on Internally Displaced Persons hold that people should be allowed “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.”
To Chokwe Lumumba, a Jackson, Miss., attorney with long experience in radical causes, the international claim “has to be asserted, but it’s going to be difficult to walk into any court and win that. … Political action has to be taken to force the question.”
Lumumba is involved with efforts by the People’s Hurricane Fund to convene a Gulf Coast National Assembly in Jackson on Dec. 9, to “press the issue not only of the right of return but of the right to control the reconstruction of New Orleans and other areas on the Gulf Coast.”
On a parallel track, ACORN (Association of Community Organizations for Reform Now) has created a Hurricane Survivors Association, to keep those strewn across the country in touch with one another and able to assert their rights.
Tanya Harris, a founder of the association, has not yet been allowed into her home in New Orleans’ Lower Ninth Ward. But, she predicted, “The more held back we are, the more rebellion you will see.”