Ruling: Fort Smith does not have to reinstall flag display

Though the city of Fort Smith must keep flags and brass plaques that were formerly part of the Flags over Fort Smith display in the Riverfront Park, the display does not have to be reinstalled, Sebastian County Circuit Judge Gunner Delay ruled Tuesday (Sept. 27).

In April 2020, the city removed seven flags in the display because of age and condition. 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.

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. The city noted in correspondence with the Arkansas History Commission that it did not want to replace the Confederate Flag because “many people in our community find historical associations with the Confederacy emotionally charging and potentially provocative.”

The Arkansas State Capitol and Historical Monument Protection Act, which was passed by the state legislature in spring 2021, 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.

Judge DeLay ruled that the city seek a waiver from the Arkansas History Commission for any plan to dispose of the previous display items. On Sept. 8 the Arkansas History Commission denied the city’s waiver request, but included in the action the option for the city to appeal the decision. At the time it denied the waiver, the commission said the waiver denial does not mean the city is required to put the flag display back where it was.

Delay said his ruling required the city to seek a waiver from the Arkansas History Commission, which it did, and thus the city had completed the terms of his ruling, said City Administrator Carl Geffken. Geffken said in the waiver application, the city had sought the ability to give the flags and the plaques to the Fort Smith Museum of History. Because the waiver was denied, the city cannot do that and must keep them, Geffken Said.

McCutchen said he intends to file a motion to reconsider with Sebastian County Circuit Court in the matter.

“The Act is crystal clear that (a court) can enjoin against nonconformity with the provisions of the Act,” McCutchen said. “The Historic Commission said it did not have the authority to enforce the act. Now a circuit court judge says he does not have the authority to enforce it. The law is meaningless unless someone says they order it to be put back up.”

McCutchen said if the motion to reconsider is dismissed, they intend to file an appeal and take the matter to the Arkansas Supreme Court for a clear ruling.

Geffken said in the past 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. Tuesday, he said that was still the plan, but the city will not rush on the matter.

“Emotions are raw at this point. That (the flags for the military branches) still remains the goal unless the Board of Directors decides to do something differently,” Geffken said. “With the F-35s, with Chaffee, with the city’s history since World War II, the military is an important part of who we are.”