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On Thursday, Sept. 8, the Arkansas History Commission denied the city of Fort Smith’s historic preservation waiver, a move that could force the city to replace the Flags over Fort Smith exhibit at the city’s Riverfront Park.

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

The display depicted the flags flying over Fort Smith since 1699, including the French Fleur-De-Lis flag; the flag of the Spanish Cross of Lorraine; the French tricolor flag; 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 representing a circle of seven stars with red and white stripes. Brass markers identifying each flag were located at the base of the flag poles.

City administrator Carl Geffken had said flags representing the US Army, Navy, Air Force, Marine Corps, Coast Guard and possibly Space Force would fly alongside of the American flag in the park.

Fort Smith attorney Joey McCutchen filed suit June 3, 2021 in Sebastian County Circuit Court seeking declaratory relief that the city violated the Capitol Building and Historic Landmarks Preservation Act. the state of Arkansas when it removed the display of the historic flag, which was erected in October 2001. McCutchen alleged that the city removed the entire display in an effort not to display the states flag Confederates of America.

The Arkansas State Capitol and Historic Landmarks Protection Act prohibits the removal, relocation, alteration, or renaming of a memorial located on public property. The law was largely a response by the Republican-dominated Arkansas Legislature to nationwide actions to remove symbols and statues of Confederate generals and symbols.

In May 2021, McCutchen asked the city to enforce the Arkansas State Capitol and Historic Landmarks Protection Act and replace the flags that flew at Riverfront Park from October 2001 through April 2020. Sebastian County Circuit Judge Gunner Delay ruled that the city of Fort Smith must obtain a waiver from the Arkansas Historical Commission regarding the removal of the Flags over Fort Smith exhibit at Riverfront Park twice. The last decision was made on January 28. Delay ruled on October 4 that the city violated Law 1003 of 2021.

On October 12, the city filed a petition for review, asking the court to overturn its opinion. A hearing on this matter was held on January 19. Late decided on January 28 that he would stick to his original decision. The city argued that the Oct. 4 order was not a final order because there were still actions to take after it was seized, the order said.

The city has been waiting since January for the completion of rules and procedures from the Arkansas Historical Commission to determine whether any action should be taken regarding the replacement of the flags. Rules for the Arkansas State Capitol and Historical Monument Protection Act were only passed this summer. The city still has the exhibit plaques in its possession, Geffken said in January. The administration replaced the old tattered flags which were retired in April 2020.

When the Arkansas History Commission denied Fort Smith’s waiver request on Thursday, it denied the state’s first historic preservation waiver since the Capitol Building and Landmarks Protection Act took effect. Arkansas State Historic Landmarks. 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, chair of the commission, voted for the waiver.

The commission said Thursday that refusing the waiver does not mean the city is required to return the flag to its place. McCutchen said that’s because making those decisions is not the commission’s job and the court has already decided what needs to be done regarding the monument.

“The commission decides on exemptions. They can’t tell the city they have to put the monument up, because that’s what the display of the flag was decided on – a historical monument, back,” McCutchen said. “In my opinion, they have to put it back though. Judge Delay said the city must file the commission’s response with the court and then have 10 days to put the monument back in place.

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

“I am happy with the decision (of the commission). Now Mr. Geffken and the city must work to resolve the issue of the Consent Decree, making sure the new Air Force mission gets to Fort Smith and taking care of the city’s other important issues and stopping trying to undo our heritage and our 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 for information and determine next steps.