City of Fort Smith loses flag display ruling on ‘historical monument’ provision

Sebastian County Circuit Judge Gunner Delay ruled Monday (Oct. 4) that the city of Fort Smith is in violation of the Arkansas State Capitol and Historical Monument Protection Act because of its removal of the Flags over Fort Smith display from the city’ downtown Riverfront Park.

In his order, filed at 4 p.m. Monday, Delay said the Flags over Fort Smith display is a “historical monument” and even though not on display is still in existence. Because it is a “historical monument,” the city is required to request a waiver from the Arkansas History Commission to determine the disposition of the display, according to the historic monument act. Delay stated in his order that the city has not made a request for a waiver from the Arkansas History Commission and has no intention of requesting such a waiver.

“(I)t’s continued refusal to do so is in violation of the Arkansas State Capitol and Historical Monument Protection Act,” the order states.

Fort Smith attorney Joey McCutchen filed suit June 3 in Sebastian County Circuit Court seeking a declaratory judgment that the city violated the Arkansas State Capitol and Historical Monument Protection Act when it removed the historical flag display and bronze markers from Riverfront Park in Fort Smith.

In October 2001, the city erected seven flags at Riverfront Park, 121 Riverfront Drive, representing the flags flown over Fort Smith since 1699. The flags included: The French Fleur-De-Lis flag; the Spanish Cross of Lorraine flag; the French tricolor flag; the U.S. flag with 15 stars; the U.S. flag with 20 stars; the U.S. flag with 24 stars; and the Confederate States of America flag depicting a circle of seven stars with red and white stripes. Brass markers identifying each flag were on the base of the flag poles. In April 2020, the city removed the flags due to age and condition, a letter from Colby Roe of Daily and Woods law firm stated.

“At some point after the flags’ removal, the brass markers were removed. The display has not existed since the removal,” the letter stated.

In May, McCutchen requested the city oblige the Arkansas State Capitol and Historical Monument Protection Act (Act 1003 of 2021) and replace the flags that flew at Riverfront Park from October 2001 to April 2020.

City Administrator Carl Geffken later said flags representing the U.S. Army, Navy, Air Force, Marine Corps, Coast Guard and perhaps Space Force will fly next to the United States flag at the park. In a May 25th letter to Geffken, Roe stated he has reviewed Act 1003 and had “serious doubts as to whether the Riverfront Park flag display would be characterized as a ‘historical monument’ under the Act.”

“We do not believe it to have been ‘installed, erected for, or named or dedicated in honor of a historical person, historical event, public service organization, firefighter, police officer, military organization, or military unit,’” the letter said. “However, assuming for the sake of argument that the flag display could have been once characterized as a ‘historical monument,’ we do not think the Act applies in any event.”

Because the flags were removed in April 2020, there was no “historical monument” in place at the time Act 1003 went into effect, which was April 28, the letter states.

Delay’s order says otherwise. He ordered that the city must file a request for a waiver with the Arkansas History Commission to determine the disposition of the Flags over Fort Smith display no later than Oct. 14.

“In addition, the City of Fort Smith is hereby enjoined from destroying, selling, transferring, conveying, moving, or otherwise disposing of any item that composes the Flags Over Fort Smith Display until the Arkansas History Commission issues its ruling on the City’s request for a waiver,” the order states.

The city has 10 days to comply with the commission’s ruling, the order states.

“This historical flag display is an important representation of Fort Smith history. We can’t allow government to erase or cancel our history like the City of Fort Smith is attempting to do. We must learn from our history,” McCutchen said. “We look forward to a ruling from the Arkansas History Commission which embraces the importance of our local and state history.”

Talk Business & Politics has asked the city for comment and will update this story when a response is received.