‘Historical monument’ waiver process not in place; Fort Smith official says lawsuit delays flag return

The city of Fort Smith has requested a waiver for a flag display removed 18 months ago even though the waiver process has not yet been created by the Arkansas Historic Commission. And it’s unclear how a judge did not know about the waiver issue before issuing a ruling against the city.

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 Riverfront Park.

In his order, delay found that the Flags over Fort Smith display is an “historical monument” and even though not currently 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.

In its “Brief in Support of the City’s Motion,” which was filed Sept. 30 by Colby Roe, attorney for the city, stated it filed a waiver request and Dr. David Ware, the director of the Arkansas State Archives, confirmed receipt and would forward it to the chair of the Arkansas History Commission. The city submitted a request for a waiver Sept. 29 and heard from Ware that same day, City Administrator Carl a Geffken said.

“Importantly, in doing so, Dr. Ware noted that the ‘rules and procedures implementing (the Act) have neither been drafted nor approved,’” the summary said.

Despite the city’s filing noting that a waiver response is not yet in place, Delay said Wednesday (Oct. 6) he was unaware the rules and procedures for implementing the act have not been drafted.

“I haven’t heard that. It has not been brought before me,” Delay said.

On Sept. 29, Delay issued an opinion and order that stated “after considering the claims for relief requested by the Plaintiff, and the undisputed facts presented to the court, the court finds that summary judgment should be granted to the City regarding the Plaintiffs action for declaratory judgment. However, a ruling on the Plaintiff’s request for a writ of mandamus is premature.

In regard to the plaintiff’s request for declaratory relief, the court finds the removal of the Flags over Fort Smith display, in and of itself, prior to the enactment of Act 1003 of 2021 does not constitute a violation of the act.” The order stated that there is nothing in the act that provides that the removal of a historic document prior to the effective date of the act constitutes a violation of the act.

“The City removed the flags 18 months ago and intends to put up the flags of the six branches of the military and the current United States flag. The ex post facto determination that the former flags that haven’t flown for over 18 months are a ‘historic’ event and require a waiver from the Arkansas History Commission, a waiver they are not able to process at the moment, further delays the flying of the flags of our country’s military and the nation,” Geffken said.

Fort Smith attorney Joey McCutchen filed suit June 3 in Sebastian County Circuit Court seeking a declaratory judgment that the City of Fort Smith 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.

The order filed Monday states 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. That request was filed Sept. 29. The city has 10 days to comply with the commission’s ruling once it is given, the order states.

McCutchen said he was aware that procedures for a waiver through the Arkansas History Commission are still being drafted. He said the city has just been ordered to request the waiver, not return the flags to the display.