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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 Fort Smith sign from Riverfront Park to downtown town.

In his order, filed at 4 p.m. Monday, Delay said the Flags over Fort Smith display is a “historic monument” and while it isn’t on display, it still exists. Because this is a “historic monument,” the city is required to request a waiver from the Arkansas History Commission to determine the layout of the exhibit, in accordance with the Historic Monuments Act. . Delay said in its order that the city has not applied for a waiver with the Arkansas History Commission and does not intend to seek such a waiver.

“(I) continue to refuse to do so is in violation of the Arkansas State Capitol and Historic Monuments Protection Act,” the order said.

Fort Smith attorney Joey McCutchen filed a lawsuit on June 3 in Sebastian County Circuit Court, seeking a declaratory judgment that the city had violated the State Capitol Protection Act of the ‘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.

City administrator Carl Geffken later said flags representing the US military, navy, air force, marine corps, coast guard and possibly space force would float next to the American flag in the park. In a May 25 letter to Geffken, Roe said he had reviewed Law 1003 and had “serious doubts as to whether the flag at Riverfront Park would qualify as a” historic monument “under the law.”

“We do not believe that it was” installed, erected for, or named or dedicated in honor of any historic person, historic event, public service organization, firefighter, or ‘a policeman, of a military organization or of a military unit “”, reads the letter. . “However, assuming, for the sake of argument, that the display of the flag might once have qualified as a ‘historic monument’, we do not believe that the law applies in any event.”

Because the flags were withdrawn in April 2020, there was no “historic monument” in place at the time Law 1003 came into effect, that is, April 28, the letter said.

The Delay order says otherwise. He ordered the city to file a waiver request with the Arkansas History Commission to determine the layout of the flags on Fort Smith no later than October 14.

“Further, the City of Fort Smith is hereby enjoined to destroy, sell, transfer, transport, relocate or otherwise dispose of any item that makes up the Flags Over Fort Smith exhibit until the Commission d ‘Arkansas history issues its decision on the city’s request for a waiver,’ the order says.

The city has 10 days to comply with the commission’s decision, the order says.

“This historic flag display is an important representation of the history of Fort Smith. We cannot allow the government to erase or cancel our history like the city of Fort Smith is trying to do. We have to learn from our history, ”said McCutchen. “We look forward to a decision from the Arkansas History Commission that embraces the importance of our local and national history.”

Talk Business & Politics has asked the city for comment and will update this story when a response is received.