Arkansas History Commission rules against Fort Smith on flag display waiver

The Arkansas History Commission on Thursday (Sept. 8) denied the city of Fort Smith’s historical preservation waiver, a move that could require the city to replace the Flags over Fort Smith display at the city’s Riverfront Park.

In April 2020, the city removed seven flags that made up the display because of age and condition, according to court documents.

The display represented the flags flown over Fort Smith since 1699, including 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.

City Administrator Carl Geffken had said flags representing the U.S. Army, Navy, Air Force, Marine Corps, Coast Guard and perhaps Space Force would fly next to the United States flag at the park.

Fort Smith attorney Joey McCutchen filed suit June 3, 2021, 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, which was erected in October 2001. McCutchen alleged that the city removed the entire display in an attempt to not display the Confederate States of America flag.

The Arkansas State Capitol and Historical Monument Protection Act prohibits the removal, relocation, alteration or renaming of a memorial that is located on public property. The law was in large part a response by the Republican-dominated Arkansas Legislature to actions around the country to remove symbols and statues of Confederate generals and symbols.

In May 2021, McCutchen requested the city oblige the Arkansas State Capitol and Historical Monument Protection Act and replace the flags that flew at Riverfront Park from October 2001 to April 2020. Sebastian County Circuit Judge Gunner Delay ruled that the city of Fort Smith must get a waiver from the Arkansas Historic Commission about the removal of the Flags over Fort Smith display at the Riverfront Park twice. The latest ruling was issued Jan. 28. Delay ruled Oct. 4 that the city was in violation of Act 1003 of 2021.

On Oct. 12, the city filed a Motion to Reconsider, asking the court to vacate its opinion. A hearing on that was held Jan. 19. Delay ruled Jan. 28 he would stick with his original ruling. The city contended the Oct. 4 order was not a final order because there were still actions required of them after it was entered, the order stated.

The city has been waiting since January for rules and procedures from the Arkansas Historic Commission to be completed so they would know if any action needs to be taken regarding replacing the flags. The rules pertaining to the Arkansas State Capitol and Historical Monument Protection Act were not passed until this summer. The city still has in its possession the plaques from the display, Geffken said in January. Administration has replaced the old and tattered flags that were removed in April 2020.

When the Arkansas History Commission denied Fort Smith’s waiver application Thursday, it denied the first historical preservation waiver in the state since the Arkansas State Capitol and Historical Monument Protection Act became law. The waiver request was denied two to one, with Commissioner Brady Banta voting present. Commission members Heather Nelson and Ronald Fuller voted against the waiver and Micheal Tarver, chairman of the commission, voted for the waiver.

The commission did say Thursday the waiver denial does not mean the city is required to put the flag display back where it was. McCutchen said that is because making those decisions is not the duty of the commission and the court has already decided on what needs to be done regarding the monument.

“The commission decides on the waivers. They can’t tell the city they have to put the monument, because that is what the flag display was ruled to be – an historical monument, back,” McCutchen said. “In my opinion, they have to put it back though. Judge Delay said the city had to file the response of the commission with the court and then they have 10 days to put the monument back up.”

McCutchen said now that the waiver has been denied, the city needs to file that response with courts and replace the monument.

“I am pleased about the decision (of the commission). Now Mr. Geffken and the city need to work on solving the consent decree issue, making sure the new Air Force mission comes to Fort Smith and taking care of the other city issues of importance and stop trying to cancel our heritage and history,” McCutchen said.

Shari Cooper, the city’s public relations and communications manager, said Geffken will consult with the city’s attorney and the board of directors for input and determine next steps.