The process of renouncing “historic monuments” is not in place; Fort Smith official says lawsuit delays flag return

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The city of Fort Smith requested a waiver for a display of the flag removed 18 months ago, although the waiver process has yet to be created by the Arkansas Historical Commission. And it’s unclear how a judge was unaware of the waiver issue before rendering a ruling against the city.

Circuit Judge Gunner Delay ruled Monday (October 4) that the city of Fort Smith was in violation of the Arkansas State Capitol and Historic Landmark Protection Act due to the removal of the Flags over exhibit Fort Smith from Riverfront Park.

In its ordinance, the delay revealed that the Flags over Fort Smith exhibit is a “historic monument” and although it is not currently on display, it still exists. Because this is a “historic monument,” the city is required to apply to the Arkansas History Commission for a waiver to determine the layout of the exhibit, in accordance with the Historic Monuments Act. .

In his “Submission in Support of the Town Motion,” which was filed Sept. 30 by Colby Roe, town attorney, said he had filed a waiver request and Dr David Ware, director of the Archives of the State of Arkansas, confirmed receipt and would forward it to the chairman of the Arkansas History Commission. The city submitted a waiver request on September 29 and heard from Ware the same day, city administrator Carl a Geffken said.

“It is important to note that in doing so, Dr Ware noted that the ‘rules and procedures for implementation (the Act) have not been drafted or approved’,” the summary reads.

Despite the city filing noting that a waiver response is not yet in place, Delay said on Wednesday (October 6) that he was unaware that the rules and procedures for implementing the law had not been drafted.

“I didn’t hear that. It was not brought in front of me, ”Delay said.

On September 29, Delay issued a notice and order that “after considering the claims for relief sought by the plaintiff and the undisputed facts presented to the tribunal, the tribunal concludes that summary judgment should be granted to the city regarding the action of the applicant. for declaratory judgment. However, a decision on the plaintiff’s request for a writ of mandamus is premature.

With respect to the plaintiff’s request for a declaratory judgment, the court finds that the removal of the Flags over Fort Smith display, per se, prior to the enactment of Law 1003 of 2021 does not constitute a violation of the law. The ordinance stated that there is nothing in the law that provides that the withdrawal of a historical document before the effective date of the law constitutes a violation of the law.

“The city withdrew the flags 18 months ago and intends to put up the flags of the six branches of the military and the current flag of the United States. The ex post facto determination that the old flags that have not flown for more than 18 months are a “historic” event and require a waiver from the Arkansas History Commission, a waiver they are not in able to deal at the moment, further delays the flight of the flags of the army of our country and the nation, ”Geffken said.

Fort Smith attorney Joey McCutchen filed a lawsuit on June 3 in Sebastian County Circuit Court, seeking a declaratory judgment that the city of Fort Smith violated the Capitol Protection Act of the State of Arkansas and Historic Monuments by removing the historic 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 above Fort Smith since 1699. The flags included: The French Fleur-De-Lis flag; the flag of the Spanish Cross of Lorraine; the French tricolor; the American flag with 15 stars; the American flag with 20 stars; the American flag with 24 stars; and the flag of the Confederate States of America depicting a circle of seven stars with red and white stripes. Brass markers identifying each flag were found at the base of the flag poles.

In April 2020, the city withdrew the flags due to their age and condition, a letter from law firm Colby Roe of the Daily and Woods law firm said.

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

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

The order filed Monday says the city must file a waiver request with the Arkansas History Commission to determine the layout of the flags on Fort Smith by October 14. This request was filed on September 29. The city has 10 days to comply with the commission’s decision once it is rendered, the order said.

McCutchen said he was aware that waiver procedures through the Arkansas History Commission were still being drafted. He said the city had just been ordered to request the waiver, not to put the flags back on the screen.


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