The Arkansas History Commission will review this week its first historical preservation waiver since the Arkansas State Capitol and Historical Monument Protection Act became law, and the decision could impact whether Fort Smith will be allowed to replace its Flags over Fort Smith display.
Jeff LeMaster, a spokesman for the Arkansas Department of Parks, Heritage and Tourism, said the city's waiver request is the first such request the commission has received.
"To my understanding that is the sole monument topic on the agenda for [this week's] meeting," LeMaster said in an email. "... The History Commission has not responded to or released an opinion on the one waiver application it has received."
The Arkansas History Commission is scheduled to meet at noon Thursday via Zoom to discuss whether to grant a waiver for the flag display that was erected in 2001. The display previously featured flags that have flown over Fort Smith since 1699. The flags included the French Fleur-De-Lis, the Spanish Cross of Burgundy, the French Tri-Color Flag, the U.S. 15-, 20- and 24-star flags and the Confederate flag.
Colby Roe, an attorney who represents the city, contacted the commission in August requesting a waiver under the Arkansas State Capitol and Historical Monument Protection Act to determine the disposition of the Riverfront Park flag display, according to documents obtained by the Arkansas Democrat-Gazette through an Arkansas Freedom of Information request.
Originally Roe requested a waiver in September 2021 to alter the flag display, but the rules for the commission had not been promulgated in accordance with the Arkansas Administrative Procedure Act.
"This waiver is necessary so that the city may proceed to install the flags of each branch of the military and the U.S. flag at its Riverfront Park and maintain flexibility as to the flags it seeks to display at its Riverfront Park," Roe said.
Two years ago, the city tried to get new flags but learned the vendor no longer sold Confederate flags. The city decided the flags would not be reinstalled and instead decided to replace them with flags that represent the six branches of the military.
The Arkansas State Capitol and Historical Monument Protection Act, or Act 1003, which became law in April 2021, prohibits the removal, relocation, alteration or renaming of a memorial on public property.
Under the law, a public entity that has control of a memorial may petition the History Commission for a waiver from the prohibition if the monument will be moved or relocated for more than 60 days.
The act also requires governmental entities to register historical monuments erected after April 28, 2021, the act's effective date, with the History Commission.
The commission is part of the Division of Arkansas Heritage, which is within the state Department of Parks, Heritage and Tourism. The rules pertaining to the Arkansas State Capitol and Historical Monument Protection Act were not passed until this summer.
How the law will affect cities' abilities to determine what to do with historical monuments on their property remains to be decided.
The rules pertaining to the act were needed to establish a process to apply for a waiver; create a process for approving a temporary waiver on an emergency basis; to establish guidelines regarding what will be designated as a historical monument; to create an application process to register historical monuments erected after April 28, 2021; and to establish guidelines for the disposition of historical monuments if a waiver is granted for removal of a monument.
The rules approved by the committee describe a "historical monument" as a statue, memorial, gravestone plate, plaque or historic flag display that is located on public property and was installed, erected for or named or dedicated in honor of a historical person, historical event, public service organization, firefighter, police officer, military organization or military unit on public property and has been listed on the National Register of Historic Places or in a veterans cemetery.
The law was passed at a time when several Confederate monuments across the country were removed or torn down after a number of unarmed Black people were killed by law enforcement officers. Several Arkansas cities have waited months for the rules because of questions surrounding the removal, repair and creation of monuments.
Fort Smith removed its historical flag display and bronze markers from Riverfront Park in 2020.
Attorney Joey McCutchen filed a lawsuit in June 2021 accusing the city of violating the Arkansas State Capitol and Historical Monument Protection Act by removing the display and not replacing it or obtaining a waiver within 60 days. The law took effect April 29, 2021.
The city has maintained that the reason for the waiver request is because of complications getting newer replica flags, but Roe said in the most recent waiver request filed in August that issues surrounding the Confederate flag were also a part of the consideration. He said in the waiver that many within the community find historical associations with the Confederacy "emotionally charging and potentially provocative."
"As such, the City does not want to reinstall such imagery on its own property; instead the City would like to dispose of the subject display (the flags, brass markers and plaque) by donating it to the Fort Smith Museum of History in accordance with [Arkansas law]," Roe said in the waiver.
The waiver also states that the city eventually received replacement flags for each flag within the subject display, but the replacement flags were never reinstalled at the park.
In addition to filing a lawsuit over the flag removal, McCutchen has submitted Freedom of Information Act requests to the History Commission asking to see any waivers requested by government entities pursuant to the new law.
Circuit Judge Gunner DeLay filed an order Oct. 4, 2021, stating that the city violated the Monument Protection Act through its "continued refusal" to request a waiver from the History Commission to determine the disposition of the display, which the court found to be a "historical monument" as defined by state law. DeLay ordered the city to file a request for a waiver by Oct. 14, 2021, and to comply with the ruling no later than 10 days after it's issued.
DeLay also granted a motion from McCutchen to strike the city's second motion for summary judgment on the basis that the city's motion violates Arkansas Rules of Civil Procedure 56(c)(1), which states in part, "No party shall submit supplemental supporting materials after the time for serving a reply, unless the court orders otherwise."
The city requested the court reconsider its order striking its aforementioned motion for summary judgment and revise its Oct. 4 order to reflect its request for a waiver from the Arkansas History Commission, as well as consider and rule on the city's motion for summary judgment and the city's defenses pleaded in this matter.
The city argued that since the rules had not been promulgated by the time the flags were removed, McCutchen's motion for summary judgment should be denied.
"Without the necessary rules to implement the Act, a governmental entity subject to the Act cannot possibly comply with the Act's requirements, nor can the Arkansas History Commission undertake its obligations under the Act," Roe said in court documents.
Roe also said Act 1003 of 2021 constitutes taking city's property.
"The Act attempts to prohibit a governmental entity, such as the City, from relocating, removing, altering, or otherwise disturbing any of its property which is determined to constitute a 'historical monument' unless the governmental entity is formally authorized to take such actions by the Arkansas History Commission," he said. "Therefore, the Act in effect constitutes a taking of the City's property without just compensation and should be deemed unconstitutional."