Opinion

Did the NC General Assembly accidentally make public Confederate monuments illegal?

“Fortunately,” writes Heather Redding, “a different path to removing public Confederate monuments might actually exist, thanks to the N.C. General Assembly’s unwitting handiwork.”
“Fortunately,” writes Heather Redding, “a different path to removing public Confederate monuments might actually exist, thanks to the N.C. General Assembly’s unwitting handiwork.” cseward@newsobserver.com

Confederate monuments should and inevitably will be removed from public spaces for reasons that have already been well articulated and documented by numerous historians, scholars, students, civic leaders and community members.

In light of recent public safety concerns, the N.C. Department of Administration petitioned the N.C. Historical Commission to relocate three Confederate monuments from the grounds of the State Capitol. In addition, immense student, faculty, and community pressure to remove UNC’s Confederate Soldier Memorial, also known as “Silent Sam” has revealed the legal challenges obstructing university officials from taking any sort of action.

All of these efforts toward relocating statues have been stymied by the 2015 Historic Artifact Management and Patriotism Act, which took decision-making power away from local jurisdictions and placed it into the hands of the state. The absence of a defined process for monument removal has created quite the legal conundrum – an arena of finger pointing and inaction. It would almost be comical if the stakes weren't so high in the pursuit of racial equity.

Fortunately, a different path to removing public Confederate monuments might actually exist, thanks to the N.C. General Assembly’s unwitting handiwork.

To make sense of this assertion, let’s begin with a careful look at the 2015 Act itself. In effect, §100-2.1 of the Act names the Historical Commission as, with few exceptions, the sole authority that can remove/relocate an “object of remembrance,” but only under narrowly defined circumstances (i.e. “transportation projects”) and to a limited choice of locations (i.e. placed in “a site of similar prominence, honor, visibility, availability and access”).

Given that this Act is impeding the removal of already existing monuments, it is clear that it was crafted to apply to any “object of remembrance” – old and new alike. However, and this is the critical part, the Cultural History Artifact Management and Patriotism Act of 2015 also amended another statute, which had previously stated:

No memorial or work of art shall hereafter become the property of the State by purchase, gift or otherwise, unless such memorial or work of art, or a design of the same, together with the proposed location of the same, shall first have been submitted to and approved by the North Carolina Historical Commission …(§100-2)

In the case of Silent Sam, the striking blow to its chance of remaining on UNC’s campus may have been dealt when the 2015 Act omitted the words “shall hereafter” from the above statute. By doing so, the new language suggests that all monuments must be approved by the Historical Commission, regardless of when they became state property.

We know that such approval did not take place for Silent Sam because there was no law requiring it in 1913 when the statue was erected. Silent Sam is listed in the Third Biennial Report of the North Carolina Historical Commission (December 1, 1908 to November 30, 1910), which reported “the United Daughters of the Confederacy will place a monument at Chapel Hill” (page 46), but there is no reference to an approval process consistent with that required in the Act of 2015. If the above interpretation is correct, there is a possibility that Silent Sam, as well as dozens of other Confederate monuments of the same era, have been unlawfully resting on their pedestals since 2015.

For those working toward the removal of Confederate monuments from public property, perhaps a new strategy would be to demand proof that the Historical Commission approved the actual statues, as well as their placement on state property. If such evidence is lacking, the monuments are illegal and should be removed immediately. In this way, perhaps it is possible to defeat the intent of the Historic Artifact Management and Patriotism Act, which was to protect public Confederate monuments indefinitely, and thus continue to pay tribute to an era that venerated white supremacy.

Heather Redding lives in Orange County.

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