NOVEMBER 2019 | AROUND THE ABA

Legal experts say removal of Confederate monuments a complex, lengthy undertaking

The controversy over Confederate monuments gained greater national prominence following the events in Charlottesville, Virginia, in August 2017.  The legal issues surrounding publicly funded and privately funded monuments differ, making approaches to removal or modification complicated. In the ABA webinar, “Understanding the Complicated Landscape of Civil War Monuments,” legal experts explored the land use, environmental, state laws, historic preservation and intellectual property laws that come into play.

In the aftermath of the Civil War, hundreds of Confederate monuments were built, mostly in the South, said Jessica Owley, law professor at the University of Miami School of Law. Owley recently helped develop a framework for assessing the legal status of Confederate statues and monuments that recognizes the varied and complicated layers of laws involved – which can fundamentally affect the legal requirements for modification or removal. 

Within the framework, there is a spectrum ranging from monuments built on public land, funded with public money and publicly supported on one end, and monuments built on private land and privately funded with the owner’s rights on the other end. Most of the monuments stand in the messy mix in the middle, which is the most interesting space for lawyers, said Owley, offering several examples to illustrate the complexity of the legal issues encountered during removal efforts. 

Take the monument at Stone Mountain, Georgia, which features a large relief sculpture depicting three Confederate figures of the Civil War, President Jefferson Davis and Generals Robert E. Lee and Thomas J. “Stonewall” Jackson. It was originally built on private land owned by the United Daughters of the Confederacy, but after a series of disputes over many decades it was eventually purchased by the state, and is now protected by state statue statutes – a “real tongue-twister,” Owley said. Artist rights laws can also come into play for some monuments, further muddying the legal waters in removal efforts. The amount of research involved just to flesh out all the historic ownership details and rights can be daunting, she said.

Then there’s the Confederate memorial in Boston Harbor. In 1963, the Daughters of the Confederacy placed a marker on Georges Island to commemorate the Confederate dead who had been imprisoned there. Georges Island is owned and managed by the state of Massachusetts through the Department of Conservation and Recreation and is a part of the Boston Harbor Islands National Recreation Area. In 2017, public sentiment put pressure on state officials, and the monument was covered to conceal it from view. Outright removal would have required approval from the Massachusetts Historical Commission, by virtue of the site’s historic designation and state ownership. Notably, the private organizations involved in this case were not purely private or private individuals expending their own funds, but were nonprofit organizations advancing their respective missions. Nonprofit organizations often receive many public benefits — such as tax advantages — so covering the monument was the best legal outcome at the time, to satisfy growing public sentiment for removal.

In Georgetown, Delaware, the Confederate monument behind the Georgetown Historical Society building houses the Marvel Carriage Museum. The Sons of Confederate Veterans erected the monument, which is on private property. However, it is property associated with public benefits, including favored tax status, as in the Boston example. The Georgetown Historical Society had received state grants for support of its museum and mission, which prompted a challenge from the NAACP to stop the issuance of grants. Lawmakers objected to the NAACP position because of the monument’s location on private land. The mixture of public and private presents some interesting conundrums, Owley said, calling this category private land, public-ish money. “It’s really uncertain how we should look at it in removal efforts when you think of this one as being seemingly private, but with an underlying level of public support that might not be immediately obvious.”

Historic preservation laws in this context may involve local, state and federal entities that protect Confederate monuments, said Jess Phelps, associate general counsel at Lyme Timber Company in Hanover, NNew Hampshire. These laws operate in diverse contexts and their application hinges on many factors, including the type of resource (a building, object, structure, site or district – and clearly monuments), its ownership and its location. 

Phelps said that at the federal level, two laws are most likely to apply: The National Historic Preservation Act – which administers the National Register of Historic Places – and the National Environmental Policy Act. Once a property is listed on the National Register, a host of other provisions come into play. Under the National Historic Preservation Act, the most likely provision to inhibit removal of a Confederate monument is Section 106, which outlines the requirement for federal agencies to consider the potential adverse effects of their “undertakings” on historic structures before any action is taken. There are also similar state laws to consider that require a state agency’s involvement in taking an action such as removal.

From the municipal government perspective, the removal process can be arduous, according to Adam Swensek, executive counsel to the city council of New Orleans. He spent two years litigating the removal of four Confederate monuments, which were erected on public land, but privately funded. The city was sued within four hours of passing an ordinance calling for their removal in 2015 on public nuisance grounds. Supporters of the monuments argued, among other things, that removal of one of the four – the Battle of Liberty Place monument – would violate federal historic preservation laws and a 1993 settlement agreement. The Eastern District of Louisiana held that while the settlement agreement required the monument in question to once again be displayed, it did not prohibit later removal where no federal funds were used or federal licenses of approvals required. The Fifth Circuit upheld the lower court, carving the way for removal in March 2017. 

The statues are now housed in a city storage facility while their fate is decided, Swensek said. “There’s been some discussion of creating a Civil War park in the city of New Orleans … there’s also been discussion about transferring ownership to the state.” 

This program was sponsored by the Joint Legal Education and Uniform Laws Group of the ABA Section of Real Property, Trust and Estate Law.

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