Fort Smith to move ahead with military flag display

The Fort Smith Board of Directors has approved a plan to install a military flag display at the Fort Smith Riverfront Park where the Flags over Fort Smith display once flew. The action follows almost two years of legal wrangling over removal of the original display.

A display consisting of the flags of each of the six branches of the military – Army, Navy, Air Force, Marines, Space Force and Coast Guard – and the United States flag will be installed at Riverfront Park as a temporary exhibit. The resolution was approved Tuesday (Jan. 3) with a vote of six in favor and Director George Catsavis opposed. The resolution also stipulates that “as determined by the City Administrator, any display of flags at Riverfront Park may be removed and/or replaced, in whole or in part, to include other flags pertinent to the City.”

Director Kevin Settle introduced an amendment to the resolution, which was approved by the board, that requires board approval before the display is changed. The display also is not intended to be a historical document as defined by the Arkansas State Capitol and Historical Monument Protection Act, the resolution states.

Geffken said the military flags will be put up by the end of the week. The resolution notes that the display is temporary, but Geffken said that does not mean it will be soon removed.

“Act 1003 of 2021 permits temporary displays if the display has been deemed temporary. The Fort Smith Board of Directors has approved a resolution determining the flags of the six branches of the military and the United States flag as a temporary display. This does not mean that it will be removed anytime soon. It means that the control over the flag display remains with the City. The Board of Directors, elected by the citizens of the City of Fort Smith, retain local control,” Geffken said.

In April 2020, the city removed seven flags in the Flags over Fort Smith display that was installed at the river park in October 2001. 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. 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, 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.

Sebastian County Circuit Court Judge Gunner 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 restore the flag display.

Delay also ruled Sept. 27 that the display did not have to be reinstalled. 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, Geffken said at the time. 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.

The resolution passed Tuesday night said the city does not intend to reinstall the Flags over Fort Smith display. McCutchen addressed the board Tuesday, asking them to wait on the change of the display until after the upcoming legislative session.

“We’re all for the military display. We just think it needs to be somewhere else, not at the river. Really, it should be at Cisterna Park on Garrison Avenue,” McCutchen said.

He said he disagreed with Delay’s opinion that the Historical Monument Protection Act did not give him authority to require the city to replace the Flags over Fort Smith display.

“We didn’t appeal the ruling. We had two instances. The Arkansas History Commission denied the city’s waiver, but they said they couldn’t rule on whether it was to be reinstalled. And Judge Delay said the law didn’t give him the authority,” McCutchen said.
He said Sen. Mark Johnson, R-Little Rock, intends to add an amendment to the act this session that will give judges the authority to require the monuments be reinstalled. According to McCutchen, the amendment to be proposed would require the city of Fort Smith to remove the flags of the six branches of the military and the United States flag.

City Attorney Jerry Canfield said a law may not be “ex-post facto,” meaning a law many not retroactively change the legal consequences of legal actions committed before enactment of the law per the Constitution of the State of Arkansas.