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285 285 272 272 274 278 281 & Sean W. Hughes*** W. Sean &

...... 285 285 ...... by 253 253 ...... 272 272 ...... Jessica Owley,*Jessica Phelps,** Jess CONFEDERATE MONUMENTS MONUMENTS CONFEDERATE PRIVATE 1. 1...... Texas Orange, in Wind theof Memorial Confederate 1. 1...... Nashville, in Statue Forrest Bedford Nathan 2...... Maryland County, Montgomery in Reb Statue Johnny 3...... Texas Dallas, in Statue Lee E. Robert 4...... Harrisonburg, in Monument Ashby Turner B. B. Landowners as Groups Heritage A. A. Landowners Individual Miami Law Class of 2022. Associate General Counsel, The Lyme Timber Company LP. LP. Company Timber Lyme The Counsel, General Associate Professor, University of Miami School of Law. The authors would like to thank Peter Byrne Byrne Peter thank to like would authors The Law. of School Miami of University Professor, ensure they do not lead to unintended consequences or create issues for another another for issues create or consequences unintended to lead not do they ensure community. construction construction of new monuments and, more significantly, the monuments relocation from public land. This Article of explains why private Confederate and controversial these over battleground next the likely to be are monuments detailed Through ten examples, troubling we private how statues. show Con- federate monuments emerge and how communities are responding to them. those than different are land on private monuments to related The challenges on public lands, and previous activism and research on Confederate monu- mon-relocated As category. this grapplingwith onlyin limiteduseof is ments as serves Article this monuments, private new of source largest the are uments a cautionary note to communities looking to dispose of their monuments by donating or returning these resources to private groups and encourages com- to relocationplans and removaltheir of impacts theevaluatefullyto munities The number of private Confederate monuments is increasing both with the As As public Confederate monuments finally begin to come down across the na- lands. private on monuments Confederate of emergence an seeing are we tion, * ** *** M K II. II. 258 III...... Monuments Confederate Public 269 ...... Monuments Confederate Private I. I. 254 ...... Introduction for his review and comments on this Article and insight in exploring these issues generally. generally. these issues exploring in insight and Article this on comments and review his for

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https://www.huffpost.com/entry/poll-confederate-flag-statues_n_5ee143b9c5b6ee376f836778 https://www.huffpost.com/entry/poll-confederate-flag-statues_n_5ee143b9c5b6ee376f836778 Ground in Confederate https://www. Statue Debate M 254 254 REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM Confederate Confederate monuments. Ariel Edwards-Levy, Years Three Last the in Budged Hasn’t Monuments Cameron Easley, Shifting 17, 2020, 3:21 removing-confederate-statues-from-public-places (citing a PM), https://thehill.com/homenews/news/503226-poll-majority-supports- supporting removal). IV. IV. 296 .. Them? About Do We What Should Them? About Do We Can What 43059-lcb_25-1 Sheet No. 135 Side B 03/17/2021 10:17:28 B 03/17/2021 135 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 136 Side A 03/17/2021 10:17:28

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. A NIV “Lest We Forget”: The Confederate Monument and the the and Monument Confederate The Forget”: We “Lest They have taken center stage in our govern- our in stage center taken have They , V , U 107, 108–11 (1983). ing the removal of a statue if Robert E. Lee that had ments. We anticipate the Southern Poverty Law Center Center Law Poverty Southern the anticipate We ments. cation and context of Truth Truth is Marching On: The Lasershow Spectacular at the https://www.splcenter.org/presscenter/splc-whose-heritage-

Virginia Removes Its Robert E. Lee Statue from U.S. Capitol U.S. from Statue Lee E. Robert Its Removes Virginia The Meaning of our ‘Monuments’ Confederate EOGRAPHER G

John J. Winberry, Winberry, J. John ers, the majority of Confederate monuments were erected dur- erected were monuments Confederate of majority the ers, 280, (2015). 286 , 23 S.E. 23 , Confederate Monuments (Sept. 15, 2020), see also also see

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T L. Gary Shapiro, Opinion, Alisha Ebrahimji, Artemis Moshtaghian, & Lauren M. Johnson, See, e.g. See,e.g. Efforts Efforts at monument removal (and, relatedly, resistance to those efforts) have 5 6 3 4 M K ERITAGE ERITAGE OVERTY https://as.ua.edu/2020/07/21/ua-professor-creates-interactive-map-of-confederate-monument- removals/. Coming Down Following George Floyd’s Death, Here’s What We Know trnd/index.html (describing flurry of removals planned or removals sixty over removals reached had that list a maintaining but been have contributors without providing numbers). Wikipedia as of June 25, 2020 (one month Memorials from Removed During the the George Floyd death Protests of George Floyd). dataset-updates-september-15-2020. Another source of information is Professor Hilary Green’s Google map of monument removals (both actual and promised). Map of Confederate Monument Removals morials to fallen soldi fallen to morials ing the Jim Crow era and have stood for and become (sometimes quite explicitly) symbols of and rallying places for hate groups. List_of_monuments_and_memorials_removed_during_the_George_Floyd_protests/ (last visited visited (last List_of_monuments_and_memorials_removed_during_the_George_Floyd_protests/ any found not have but source a as Wikipedia of unreliability the acknowledge We 2021). 3, Feb. monu removed of list comprehensive other P 15, 2017), https://www.nytimes.com/2017/05/15/opinion/the-meaning-of-our-confederate- H property, and property, 41% leavingsupport in place but contextualizing). 2021] 2021] stood in our parks and town squares. courthouses. and capitols state including buildings, ment MONUMENTS CONFEDERATE PRIVATE successful most the was 2020 of summer the in Floyd George of murder the lowing 255 period for Confederate monument removal to date, and reignited and built upon structures. troubled these with grapple to calls earlier LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM will keep updating such information as it has been a consistent tracker of locations and removals removals and locations of tracker a consistent been has it as information such updating keep will of such sites. sense given the particularly pernicious messaging related to monuments on publicly publicly on monuments to related messaging pernicious particularly the given sense largely focused on Confederate monuments in public spaces. Such a focus makes robert-e-lee-statue-from-u-s-capitol robert-e-lee-statue-from-u-s-capitol (profil 3:45 PM), https://www.cnn.com/2020/06/09/us/confederate-statues-removed-george-floyd- (Dec. 21, 2020, 9:39 AM) https://www.npr.org/2020/12/21/948736896/virginia-removes-its- civilwar.vt.edu/confederate-monuments/ (last visited monuments.html; monuments.html; Katharine P. Zakos, Park Confederate Memorial and the Changing Narratives of History been one of Virginia’s two statues in the U.S. capitol from 1909–2020). 1909–2020). from capitol U.S. the in statues two Virginia’s of one been Southern Townscape in southwestern Virginia, including the lo in urbansettings);in C Y 43059-lcb_25-1 Sheet No. 136 Side A 03/17/2021 10:17:28 A 03/17/2021 136 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 136 Side B 03/17/2021 10:17:28 M K C Y (Aug. J. (July ALESTINE IMES , P T

Opinion: Opinion: Now VALANCHE , N.Y., A opinion-time-is-now- Controversial Robert E. E. Robert Controversial ., Paul Pape, UBBOCK UBBOCK , L , , WFAA (Sept. 20, 2019, 10:37 /20200723/ See, e.g Some were previously public public previously were Some cussing cussing a in monument Confederate The establishment of entirely new new entirely of establishment The ty bynonprofit organizations orindivid- nizations and individuals, removing these these removing and individuals, nizations 93PercentofConfederate Monuments StillStanding.are A Boom in Confederate Monuments, on Private Land Private on Monuments, Confederate in Boom A (Dec. 16, 2019, 4:00 AM), https://www.washingtonpost.com/politics/ https://www.washingtonpost.com/politics/ AM), 4:00 2019, 16, (Dec. (Aug. 14, 2020), https://www.youtube.com/watch?v=1ZsvGy9yyyQ https://www.youtube.com/watch?v=1ZsvGy9yyyQ 2020), 14, (Aug. Confederate Monuments: Past, Present, and Future - Webinar - August Confederate Veterans Memorial Plaza Dedicated in Palestine OST UBE es not send a particularly subtle message. P

T . This focus, however, misses an important strand of Confederate Confederate of strand important an misses however, focus, This OU (Apr. 13, 2013), https://www.palestineherald.com/archives/confederate-veterans- ASH Y , , W RESS Local governments have begun conveying or returning monuments re- monuments returning or conveying begun have governments Local -P US/ICOMOS, US/ICOMOS, Tavernise, Sabrina Kathleen Tipler, Tyler Johnson, Tyler Camarillo, Andrea Benjamin, Ray Block, Jr., Jared Jared Jr., Block, Ray Benjamin, Andrea Camarillo, Tyler Johnson, Tyler Tipler, Kathleen Cheril Vernon, The Confederate monument at Black Jack’s Crossing Golf Course in Lajitas, Texas For For example, a particularly common monument location is on the grounds of a local

Both supportersand opponents of Confederate monumentssee theappeal of Confederate monuments appear on private property for a few reasons. Some, 11 12 8 9 10 7 ERALD 2019/12/16/percent-confederate-monuments-are-still-standing-heres-why/. 2019/12/16/percent-confederate-monuments-are-still-standing-heres-why/. immune from political pressure where advocates’ tools for removal are far less clear. clear. less far are removal for tools advocates’ where pressure political from immune At the same time, local governments looking to remove Confederate monuments public on displays to alternative palatable more a as ownership private view generally lands. private private monuments. As public sentiment continues to coalesce in favor of public eye monument lands supporters private as removal, safer locations—comparatively Confederate Confederate monuments on private property is not only continuing but increas- ing. to-relocate-confederate-monuments-in-bastrop-county to-relocate-confederate-monuments-in-bastrop-county (dis receptive receptive towns). Other times, communities seek to move them to museums where they can be interpreted and contextualized. Often, the monuments remain in storage as local governments Here’s Why 13th, 2020 30, 2017), https://www.nytimes.com/2017/08/30/us/confederate-monuments.html. There are a few common strategies for dealing with the “after life” of a Confederate monument. Sometimes monuments are relocated to other public locations (parks, cemeteries, battlefields, or more memorial-plaza-dedicated-in-palestine/article_0ce22066-47ad-51e2-8e2a-9b0234b8271b.html. Clemons,JulianChrylWamble,Laird,&

H 256 256 owned lands. REVIEW LAW CLARK & LEWIS monuments now relocated to private lands. 25.1 [Vol. LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM monuments—those located on private property. property. private on located monuments—those 23, 2020, 12:01 AM), https://www.lubbockonline.com/opinion AM), 12:01 2020, 23, courthouse). County the of Bastrop front previously stood in a public park in Dallas, Texas. Demond Fernandez, Lee Statue Removed from Dallas Has New Home in Lajitas, TX PM), https://www.wfaa.com/article/news/local/controversial-robert-e-lee-statue-removed-from- courthouse. This do Is the Monuments in Time Bastrop Confederate County to Relocate moved from public spaces tomoved private orga public from spaces commemorative structures from the public domain but perhaps not eye. the public (comments of Destry Jarvis, former Park Service employee). Destry employee). Park of Service (comments former Jarvis, historically,wereerectedprivateproper on uals to commemorate a specific event or location. dallas-has-new-home-in-lajitas-tx/287-a857b24c-937f-4a42-84b6-7fc34e0917d6. 43059-lcb_25-1 Sheet No. 136 Side B 03/17/2021 10:17:28 B 03/17/2021 136 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 137 Side A 03/17/2021 10:17:28 , ]; ]; ]. ]. Life and Death Etched in Stone The The Life and Death of Confederate lacements/2020/07/25/44f537ee- This Article documents examples examples documents Article This Indeed, wepreviously documented this tely private is an oversimplification, and and oversimplification, an is private tely 15, 18 (2018) [hereinafter Owley & Phelps, The public/private nature of real property is is property real of nature public/private The Understanding the Complicated Landscape of Civil War note 12, at 1398. Etched in Stone: Historic Preservation Law and Confederate Confederate and Law Preservation Historic Stone: in Etched UPPLEMENT supra S ,

. 1393, 1430 (2020) [hereinafter Owley & Phelps, Phelps, & Owley [hereinafter (2020) 1430 1393, . . 627,671–73 [hereinafter(2019) Owley,& Phelps L.J. EV EV R

R

Substantially different issues arise with private monuments. monuments. private with arise issues different Substantially ]. L. As Confederate Monuments Tumble, Die-Hards are Erecting Replacements

. L.

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(July 25, 2020, 10:30 AM), https://www.washingtonpost.com/national/as- AM), 10:30 2020, 25, (July , 68 B , 71 F 71 , , 93 OST P Jess Phelps & Jessica Owley, Jessica Owley & Jess Phelps, See generally id. Marc Fisher,

. After detailing the broad contours of the emerging private Confederate monu- Confederate private emerging the of contours broad the detailing After From public monuments, we move to private Confederate monuments to dis- to monuments Confederate private to move we monuments, public From This Article begins with background on public Confederate monuments il- to monuments public Confederate on background with begins This Article We predict the next battleground in the continued conflict over Confederate 14 15 16 13 ASH M K Owley & Phelps, Phelps, & Owley heritage groups that organized their initial payment and placement or to wealthy individuals who who individuals wealthy to or placement and payment initial their organized that groups heritage display them on their land. Jessica Owley Monuments & Jess Phelps, countered or emerging. The examples below highlight why new and formerly public public formerly and new why highlight below examples The emerging. or countered for preferences previous despite land private to moving are monuments Confederate land. public on statues these locating false dichotomy in the private/public nature of Confederate monuments, illustrating illustrating monuments, Confederate of nature private/public the in dichotomy false truth. larger this showcases monuments these of examination an and fluid, generally en- commonly most now are that monuments private of types the of examples cuss W confederate-monuments-tumble-die-hards-are-erecting-rep Monuments Monuments advocates and communities to use to facilitate removal. removal. facilitate to use to communities and advocates any that monu- suggest to However, monuments. private with contrast the lustrate or comple public completely either ment is suggestion. this make not does Article this While monuments on public land have a host of laws potentially protecting them, modifica- and removal thataffect can the pressures political subject to also theyare tion processes. For monuments on private lands, the legal issues center instead on property rights, land use, and free speech, and there are generally fewer tools for cannot cannot decide what to do with them. Many end up in private hands though, returning to the 2021] 2021] MONUMENTS CONFEDERATE PRIVATE 257 LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM

monuments will center on private monuments. private on center will monuments of private Confederate monuments (without attempting to provide an exhaustive of removal Confed- the other supporting work Our this trend. list) to demonstrate pri-when in erate considering is spaces public helpful only monuments marginally vate monuments. how these interests interwoven can discussions removal complicate given the com- plex layers of ownership involved. cd04-11ea-b0e3-d55bda07d66a_story.html (profiling the beginning of the shift to private Complicated Landscape monuments). C Y 43059-lcb_25-1 Sheet No. 137 Side A 03/17/2021 10:17:28 A 03/17/2021 137 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 137 Side B 03/17/2021 10:17:28

, M K C Y see see also our- - , https:// TR C

. (Aug. 4, 2020), 2020), 4, (Aug. IST The majority of of majority The H EWSPAPER graveyard-is-within With such a pattern, it it pattern, a such With N - S TLANTA ’ , A monument - RCHITECT , A , Mass Mass Produced, Mass Removal, Op-Ed: A note 12, at 1399–1400 (discussing the afterlife afterlife the (discussing 1399–1400 at 12, note confederate supra supra , A Confederate Statue Graveyard Could Help Bury the Old Old the Bury Help Could Graveyard Statue Confederate A e monuments by ensuring they are not supported by /research/confederate-monuments /research/confederate-monuments (last visited Feb. 3, 2021) Life and Death and Life Historians have noted that communities often erected erected often communities that noted have Historians /2020/08/op-ed-a- note 3, at 111. 111. at 3, note (July 26, 2019, 9:00 AM), https://theconversation.com/a-confederate- AM), 9:00 2019, 26, (July com Confederate Statues Were Never Really About Preserving History . II. PUBLIC CONFEDERATE MONUMENTS MONUMENTS CONFEDERATE II. PUBLIC (July 8, 2020, 7:00 AM), https://projects.fivethirtyeight.com/confederate- AM), 7:00 2020, 8, (July supra

Confederate Monuments Interpretation Guide , IGHT archpaper E . Owley & Phelps, Phelps, & Owley ONVERSATION Winberry, Winberry, Ryan Best, See, e.g. See www HIRTY There were three primary historic waves of Confederate monument installa- Last, at the end of the public life of Confederate monuments (when a commu- a (when monuments Confederate of life public the of end the at Last, , C 18 19 T 20 17 IVE (roughly (roughly 1950–1970). F Confederate Confederate monuments to reinforce the subjugation of nonwhites at times when white citizens saw their traditional way of life threatened. tion. The earliest Confederate monuments tended to be in cemeteries and have a strong funerial aspect, but were comparatively few in number. https:// grasp/ (same). www.atlantahistorycenter.com history).this (profiling would unfortunately not be surprising to see more Confederate monuments appear appear monuments Confederate more see to surprising be not unfortunately would today in a fourth wave as backlash against contemporary removal efforts and the movement. Matter Lives Black statue-graveyard-could-help-bury-the-old-south-118034 (proposing a potential solution to the control control over their placement and messaging. Relocation to private land may make rational sense, but close attention must be paid to these to plans avoid unintended consequences. 258 258 ment movement, we discuss how communities can (and cannot) take action in re- sponseto theseprivate monuments. Whileprivate Confederate monuments areap- propriately protected by the First Amendment, we urge local governments to dis- tance themselves from thes REVIEW LAW CLARK & LEWIS public funds and to avoid, to the extent possible, public confusion about the true nature of these private We monuments. some provide where examples signs, addi- of impacts public the lessen could vegetation even or markers, or monuments tional monuments. Confederate private 25.1 [Vol. lose may entities public domain), public the from monument a remove to elects nity LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM Confederate monuments appeared post-Reconstruction and into and Jim the Crow post-Reconstruction appeared era monuments Confederate (roughly 1890–1930), with a third wave emerging during the Civil Rights Era statues/ a (showing timeline of monuments on public lands). of public Confederate monuments and what communities do with them post-removal); Derek Alderman, H. & Brashers Jordan South afterlife of these monuments); ConfederateMonumentGraveyardWithinGraspOur Is Anna Marcum, 43059-lcb_25-1 Sheet No. 137 Side B 03/17/2021 10:17:28 B 03/17/2021 137 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 138 Side A 03/17/2021 10:17:28

. N ’ AR AG L.J. SS W A M

. (June (June IVIL IVIL IST C H and to re- to and

. ENTUCKY ENTUCKY M , A MITHSONIAN 108 K Henry Louis Gates, Gates, Louis Henry S RESERVATION

, AUSE AUSE AND P ” , C

. see also IST OST OST H L RUST T L ’ YTH OF THE (Nov. 8, 2019), https://www.nytimes.com/ https://www.nytimes.com/ 2019), 8, (Nov. AT M , N IMES HE HE T

The Lost Cause recasts the “nature of ante- of “nature the recasts Cause Lost The As one National Register nomination for a a for nomination Register National one As T in , , N.Y. Confederate Monuments as Badges of of Badges as Monuments Confederate Introduction

How How I Learned About the “Cult of the Lost Cause What What Should We Do With Confederate Monuments? note 19. note (Gary W. Gallagher & Alan T. (Gary 2000). W. Gallagher eds., Nolan The majority were built as symbols of white dominance, supra

1 Alexander Alexander Tsesis,

1, Dane Dane Kennedy, Gary W. Gallagher, Mitch Landrieu, Best, Statement on Confederate Monuments See Confederate Confederate monuments have played a central role in the establishment and staggering odds. This was the “Lost Cause” as the late nineteenth century saw century nineteenth late the as Cause” “Lost the was This odds. staggering it,and awhole generation Southernersof set about glorifying and celebrating it. The Cult The of the Lost Cult Cause had roots in its the Southern search for justifica- attempt-War.substituteCivilvictoryInathe in for find to need the and tion ing to deal with defeat, Southerners created two of clash anthe was Cause Lost image the of Cult the of of theme major A the epic. heroic war as a great civilizations, one inferior to the other. The North, “invigorated by constant struggle with nature, had become materialistic, power.” The South had grasping a “more generous climate” which had for led to a finer wealth and society based upon “veracity and honor in women.” Like man, tragic chastity heroes, and Southerners had fidelity waged in a noble to preserve struggle superiorThere their was civilization. of an chiv- element but doomed against victories noteworthy alry achieving in had the the fought, way South Understanding Understanding the timeline of Confederate monument placement gets at the 24 25 26 21 22 23 The ‘Lost Cause’ that Built Jim Crow Jim Built that Cause’ ‘Lost The M K ISTORY ISTORY confederate-memorials (explaining that while some Confederate monuments “were erected—like erected—like “were monuments Confederate some while that (explaining confederate-memorials these monuments played in promulgating the Lost Cause ideology); Jr., perpetuation of the Lost Cause myth. Cause Lost the of perpetuation 18, 2020), https://savingplaces.org/press-center/media-resources/national-trust-statement-on- other monuments to war dead—for reasons of memorialization, most Confederate monuments were to intended serve as a of celebration Lost Cause mythology and to advance ideas of white supremacy”). truth of these statues. Few were built to support veterans or to honor lost family members. 695, (2020). 708 (Oct. 30, 2017), https://www.historians.org/publications-and-directories/perspectives-on- 2019/11/08/opinion/sunday/jim-crow-laws.html (discussing the role that Lost Cause played in after supporting Reconstruction).period in the bellum Southern society and the institution of slavery, the constitutionality of andsuc- bellum ofsociety Southern institution the the slavery, constitutionality and society, wartime their of characteristics the War, Civil the of causes the cession, the reasons for [the South’s] defeat.” H

2021] 2021] MONUMENTS CONFEDERATE PRIVATE 259 LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM property in Louisiana stated: stated: Louisiana in property mind Black residents that they did not hold the reins of power. of reins the hold did not they that residents mind Black history/october-2017/what-should-we-do-with-confederate-monuments history/october-2017/what-should-we-do-with-confederate-monuments (profiling the role that C Y 43059-lcb_25-1 Sheet No. 138 Side A 03/17/2021 10:17:28 A 03/17/2021 138 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 138 Side B 03/17/2021 10:17:28

, , M K see see HE HE C Y , T ETERANS V NTRODUCTION I Written Written in Stone: Heyward Shepard:Heyward , https://www.flscv. https://www.flscv. , The SCV was in- was SCV The 117, 120–22 (2006); RITICAL

. ONFEDERATE C

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: V

H Membership is open to all AR When When White Women Wanted a Paul A.Shackel, W

. Caroline E. Janney, See ONS OF IV See , S 138, 138, 140, 146 (2003) (profiling the ONFEDERACY ings to discuss the military and polit- and military the discuss to ings ONFEDERATE ONFEDERATE C C , 52 C EO (Feb. 6, 2020), https://www.nytimes.com/ https://www.nytimes.com/ 2020), 6, (Feb. The Sons of Confederate Veterans (SCV) N (July 31, 2020, 11:01 PM), https://www. https://www. PM), 11:01 2020, 31, (July IMES in ONS OF , T S

RCHAEOLOGY A

. ERALD The SCV generally opposes monument removal, monument opposes generally SCV The H IST N.Y. IVISION IVISION ced monuments but do not want to reveal these ideas and tip off off tip and ideas these reveal to want not do but monuments ced D note 29. note 29.

According toits website, “theSCV continues to serveas . AILY LA , 37 H D , F , Confederate Reckoning: The Search for New Homes for the South’s supra supra supra , , The The Struggle for the Sons of Confederate Veterans: A Return to White ‘The Lost Cause’: The Women’s Group Fighting for Confederate Monuments Confederate for Fighting Group Women’s The Cause’: Lost ‘The ‘Loyal ‘Loyal Slave’ Monuments Tell a Racist Lie About American History OLUMBIA , C (Aug. 10, 2018, 12:17 PM), https://www.theguardian.com/us-news/2018/aug/10/ The organization describes itself as involved in heritage-related work, such such work, heritage-related in involved as itself describes organization The , (Mar. 25, 2019), https://www.thenation.com/article/archive/loyal-slave-confederate- What is SCV? the What Member A Become is SCV? the What Mike Christen, Allen G. Breed, Breed, G. Allen What Is the Sons of Confederate Veterans? Heidi Beirich, These organizations also erected other monuments as part of the Lost Cause movement, Two heritage groups have been principally responsible for helping to establish establish for to helping responsible been have principally groups Two heritage The SCV was organized in Richmond, Virginia in 1896. 283 (Euan Hague, Heidi Heidi Edward& Beirich, 2008). Hague, H. 283Sebesta eds., (Euan 31 32 33 34 28 29 30 27

Kali Holloway, Holloway, Kali ATION UARDIAN The Faithful Slave Memorial united-daughters-of-the-confederacy-statues-lawsuit. as as marking soldier’s graves, Confederate pro- facilitating historical re-enactments, meet regular hosting publications,and moting ical history of the Civil War. male male descendants of any veteran who served honorably in the Confederate armed forces. home-for-souths-monuments/42130463/ (profiling the organization’s stance and noting displafor locations for ideas have they Supremacy in the Early Twenty-FirstEarlyCentury theSupremacy in org/index.php/become-a-member (last visited Feb. 23, 2021). columbiadailyherald.com/story/news/state/2020/08/01/confederate-reckoning-search-for-new- monuments-civil-war-slavery/ (same); Alison M. Monument Parker, to Black ‘Mammies,’ including ones to confederate women and “faithfulslaves.”confederateand to oneswomenincluding and the United Daughters of the Confederacy (UDC). the Confederacy of Daughters United and the slavery as a beneficial institution for enslaved persons. Gender, Race, and the Memorial Shepherd Heyward 280, N 2020/02/06/opinion/sunday/confederate-monuments-mammy.html (discussing faithful slave monuments and a proposal to build a faithful mammy sculpture in Washington D.C. in 1923 that its prevented completion). and others and the the from NAACP critiques (Mar. 12, 2018), https://www.smithsonianmag.com/history/how-i-learned-about-cult-lost-cause- 2018), 12, (Mar. Cause). Lost the of discussion this with nomination Register National a (quoting 180968426/ joint efforts to erect such a monument). Faithful slave monuments were an attempt to recast 260 260 REVIEW LAW CLARK & LEWIS spired by the Lost Cause narrative and disapproved of attempts to extend equality community. Black the to a historical, patriotic, and non-political organization dedicated to insuring that a true history of the 1861–1865 period is preserved.” 25.1 [Vol. LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM

also https://scv.org/what-is-the-scv/ visited Feb. (last 23, 2021). and maintain Confederate monuments. Confederate maintain and Monuments G 43059-lcb_25-1 Sheet No. 138 Side B 03/17/2021 10:17:28 B 03/17/2021 138 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 139 Side A 03/17/2021 10:17:28

, L ’ AT , N , see, e.g. EMORIAL (June 4, 4, (June It isalso (profiling (profiling M

’ ODAY supra , https://hqudc. ADIES L

: USA USA T After the Civil War,

, AST P efforts appear to be driven driven be to appear efforts Richmond Richmond Is Taking Down ONFEDERACY C New Confederate Monuments Are (June 30, 2020, 9:30 AM), OT THE N UN S , , CNN (Aug. 24, 2017, 3:27 PM), ERALD ERALD EAD EAD BUT in the Silent Sam debate and the divisions within divisions the and debate Sam Silent the in D , H AUGHTERS OF THE NC Town Takes First Step in Relocating Confederate

J. (July 20, 2020, 1:57 PM), https://www.pnj.com/ D Emanuella Grinberg, Grinberg, Emanuella 2 (Gary W. Gallagher ed., 2008). 2008). ed., Gallagher W. 2 (Gary EWS EWS (May (May 8, 2018), https://www.nrpa.org/parks-recreation- Mobile Mobile Rebuffs Confederate Heirs; Opts to Place Monument in N NITED URYING URYING THE note 38. 38. note see also AUSE N B ’

C , Sons of Members Oppose 2.5 Million Silent Sam , U -conflict. Other monument-promotion SS Standing to Challenge Removal of Confederate Park MonumentsParkConfederate of RemovalChallenge to Standing supra A

(Dec. 14, 2019, 3:55 PM), https://www.dailytarheel.com/article/ https://www.dailytarheel.com/article/ PM), 3:55 2019, 14, (Dec. , (June 24, 2020), https://www.al.com/news/2020/06/mobile-rebuffs- OST OST Martha Martha Quillin, L EEL ENSACOLA ANNEY J John John Sharp, See H

COM ARK , P P E. Pensacola Attorneys Say There Are No Legal Grounds to Stop Confederate See AR

Section III.B; III.B; Section T , AL. & Charlie McGee, McGee, Charlie AILY at 12–13. 12–13. at AROLINE See The UDC grew out of several different ladies’ memorial organizations. memorial ladies’ different several of out grew UDC The See infra History of the UDC C Id. History of the UDC Ryan W. Miller, Ledyard King, & Sarah Elbeshbishi, Kozlowski, C. James , D The UDC was founded in Nashville, Tennessee in 1894. in Tennessee Nashville, in founded was UDC The 37 38 39 40 41 35 36 M K ECREATION ECREATION SSOCIATIONS AND THE History Museum removal/3287750001/ (city rejecting a legal local challengeby removal/3287750001/ (city rejecting SCV chapter). Reward magazine/2018/may/standing-to-challenge-removal-of-confederate-park-monuments/ magazine/2018/may/standing-to-challenge-removal-of-confederate-park-monuments/ (noting active most litigant has been that the the againstSCV Confederate monument removal); Kevin Robinson, Monument Removal by by local chapters. the group most active in the establishment of new Confederate monuments as seen seen as monuments Confederate of new establishment in the active most the group below. examples detailed our from story/news/2020/07/20/pensacola-attorneys-no-legal-grounds-stop-confederate-monument- Going Up and These https://www.cnn.com/2017/08/18/us/new-confederate-monuments/index.html. Are the People Behind Them https://www.heraldsun.com/news/local/article243875862.html. https://www.heraldsun.com/news/local/article243875862.html. Confederate Statutes: Is This the End for https://www.usatoday.com/story/news/nation/2020/06/04/confederate-statues- PM), 5:36 2020, Other Confederate Memorials? richmond-virginia-robert-e-lee-removed-other-states/3144226001/. It is dedicated to honoring the memory of its Confederate ancestors and protecting, protecting, and ancestors Confederate its of memory the honoring to dedicated is It Overall, the SCV is the most active group opposing monument removal. monument opposing group active most the is SCV the Overall, women’s groups coalesced to bring home soldiers’ remains and create days. memorial organization. tax-exempt nonprofit, a is UDC the 1919, in incorporated Formally org/history-of-the-united-daughters-of-the-confederacy/ (last visited Feb. 23, 23, org/history-of-the-united-daughters-of-the-confederacy/ 2021). Feb. (last visited A R their adversaries). It is not clear which level within the organization is pushing the anti-removal agenda, as the SCV is fairly decentralized. chapters. Some higher profile disputes are led by the state 2021] 2021] although some have representatives recently made more nuanced statements, indi- cating that they are focusing their efforts on a MONUMENTS CONFEDERATE few PRIVATE geographical areas and on pre- venting the destruction of monuments (so they presumably can be relocated). 261 LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM

individual capacities. Monument, Removing Soldier From Top 2019/12/confederate-internal confederate-heirs-opts-to-place-monument-in-history-museum.html; McGee, chapter Carolina North the of role leadership the the organization over this monument). Last, some opposition is being led by members in their C Y 43059-lcb_25-1 Sheet No. 139 Side A 03/17/2021 10:17:28 A 03/17/2021 139 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 139 Side B 03/17/2021 10:17:28

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: -take-our-statue-back/48 (profiling return of a Confederate NTERIOR I Setting the Lost Cause on Fire LACES P , Andrew Oxford, Helen Wieffering, & Grace Oldham, ConfederateCourthouseStatueRemovedGroundsNC From T OF , Daniella Cheslow, Cheslow, Daniella , ’ note 30, at 283. 283. at 30, note (June 30, 2020, 5:40 PM), https://dcist.com/story/20/06/29/loudoun- PM), 5:40 2020, 30, (June EP Kali Holloway, Holloway, Kali IST D

supra See, e.g. ISTORIC ISTORIC See, e.g. H see see also U.S. , DC ; (July 23, 2020, 12:07 PM), https://www.azcentral.com/story/news/politics/arizona/ https://www.azcentral.com/story/news/politics/arizona/ PM), 12:07 2020, 23, (July It is not clear how centralized decision making is within the UDC as far as advocatingas for making within far clearhow thecentralizeddecision is UDCas not is It Williams, Erika Id. Beirich, See Karen L. Cox, (1996) (noting this emphasis on public locations). Today, the UDC is taking a less aggressive stance on monument removal than than removal monument on stance aggressive less a taking is UDC the Today, Civil Rights Act of 1964 and Voting Rights Act of 1965. Since the 1960s, the the 1960s, the Since 1965. of Act Rights Voting and 1964 of Act Rights Civil UDC has functioned mostly as a social group . . . . It’s rarely been involved in political battles over Confederate symbols, flags, or monuments. They They continued to hold sway in southern communities at least through the mid-20th century, before the organization experienced membership, likely in response a to racial changes following steepthe passage of the decline in

46 47 42 43 44 45 EPUBLIC EGISTER EGISTER OF headquarters headquarters (explaining the history of the UD local chapters. chapters. local https://www.historians.org/publications-and-directories/perspectives-on-history/summer- 2020/setting-the-lost-cause-on-fire-protesters-target-the-united-daughters-of-the-confederacy- fire). on set the UDC’sto attempting headquarters local local governments return monuments to the UDC, it now must decide where and Winston-Salem, in monument Confederate the example, For them. display to how cemetery. a in it place to plans now who UDC the to returned was Carolina North UDC promoted the Lost Cause narrative even more than the SCV the the than by teaching even more narrative the Lost Cause UDC promoted Lost Cause mythology in schools and to UDC members. the return of public monuments initially funded by the organization. Some have been returned to to returned been have Some organization. the by funded initially monuments public of return the Statue Back R 2020/07/23/confederate-monuments-removed-overnight-arizona-capitol/5494682002/. R 1934 Although Although the UDC has not been as active as the SCV in opposing monument re- moval, it is periodically recognized as the owner of Confederate monuments on public lands. As owner, the UDC sometimes has Confederate monuments thrust upon it as communities struggle with what to do with statues post-removal. 262 262 preserving, and marking “the places made historic by Confederate valor.” REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM

the SCV. As historian Karen Cox has noted: hasCox noted: Karen historian As SCV. the daughters-of-confederacy-well to returned been have Others Virginia). County, Loudoun in chapter UDClocal a to monument state chapters. Monuments Removed from Arizona Capitol at Request of United Daughters of Confederacy explicit mission to place a Confederate monument in every Southern town. Southern every in monument a Confederate place to mission explicit Want Want You to Know About Them 2018/10/06/7-things-the-united-daugh about-them_partner/. 43059-lcb_25-1 Sheet No. 139 Side B 03/17/2021 10:17:28 B 03/17/2021 139 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 140 Side A 03/17/2021 10:17:28

N.C.

The The . 62, 62–63 IST (Feb. 1, 2019), , https://www.

. ANDSCAPES H L S (June 22, 2020), 2020), 22, (June TR ’ C PEDIA

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, 17 J. OMMEMORATIVE , S. , C No Action Taken on Confederate Statue, , or they were paid for by other funding funding other by for paid were they or , EATHERFORD EATHERFORD 2 Arizona Confederate Monuments on State Land While the erection of monuments slowed slowed of monuments the erection While , W UDC proposal to erect a national monument “in . (July 23, 2020), https://www.fox10phoenix.com/ HX sua sponte sua P

Autumn Autumn Owens, “Ye Gave Them a Stone”: African American Women’s Clubs, Clubs, Women’s American African Stone”: Gave Them a “Ye 10 (quoting (quoting a letter from the UDC to the Arizona Department

This recently occurred in Arizona. The UDC had had UDC The Arizona. in occurred recently This Civil War Monuments see see also , FOX note 46 By 2000, there were more than 780 monuments located across supra supra Confederate Monument, State Capitol, Raleigh , , Thomas Brown, , Joan Marie Johnson, Johnson, , Marie Joan (Mar. (Mar. 12, 2019), https://www.courthousenews.com/confederate-statue-removed-

.

ERV See, e.g. Whose Heritage? Public Symbols of the Confederacy See, e.g. FOX10 Staff & Johnathan J. Cooper, Id. et Oxford al., See, e.g. S Even when communities understood the origin (and the acquired and and contin- acquired the (and the origin understood Even communities when Over the years, the UDC and the SCV worked with local governments at all 52 53 54 48 49 50 51 M K EWS EWS the Frederick Douglas Home, and Black Mammy Monument ncpedia.org/monument/confederate-monument-state (last visited Feb. 3, 2021) (summarizing erect this monument). to efforts https://www.weatherforddemocrat.com/covid-19/no-action-taken-on-confederate-statue- Relocated to Private Property previously previously donated to the state both a Davis Jefferson highway marker and a me- morial to the Arizona Confederate Troops that sat in downtown Phoenix. UDC UDC asked the state to regift the monuments to them “[t]hese explaining, monu- current to the but due repair, of need in are now and to the state werements gifted located.” are they where them repair to unwise it believe we climate, political Confederate Veterans firmly supplanted thedominant organizational force in white Civil War commemoration”). United Daughters of the Confederacy as the https://www.splcenter.org/20190201/whose-heritage-public-symbols-confederacy. (2005) (profiling Black resistance to a 1920s memory of the of themammies colored faithful South”). (2012) https://docsouth.unc.edu/commland/features/essays/brown/ (profiling the roles of these two organizations in erecting monuments and noting that, in recent years, “the Sons of N 2021] 2021] In some cases, the UDC asks governments to regift them monuments being re- moved from public display. MONUMENTS CONFEDERATE PRIVATE 263 LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM

sources and groups. and sources recently. until unanswered largely went removal for calls continued 1960s, the after ued of symbolism these monuments), the monuments were slow to come down. ernments also erected monuments monuments erected also ernments questions-arise-over-monuments-owner/article_bedba016-b4bd-11ea-b628-8f0ddb7a3af0.html Texas). the United States, largely in the South. inthe largely States, United the news/2-arizona-confederate-monuments-on-state-land-relocated-to-private-property. of Administration). from-nc-courthouse-grounds/; Questions Arise Over the Monument’s Owner levels levels to erect and maintain Confederate monuments. (describing (describing a dispute over the UDC’s ownership of a Confederate monument in Parker County, C Y 43059-lcb_25-1 Sheet No. 140 Side A 03/17/2021 10:17:28 A 03/17/2021 140 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 140 Side B 03/17/2021 10:17:28

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(June 24, 2020, 12:36 PM), see also ODAY oun, one of the intellectual leaders of T

(Aug. 17, 2017, 11:47 AM), https:// Crews Work to Remove Charleston’s Statue of , USA OST P

. (July 3, 2020), https://news.artnet.com/art-world/ https://news.artnet.com/art-world/ 2020), 3, (July ASH Despite a history of opposition, it not was until a of opposition, history Despite , W The Robert E. Lee monument served (as such mon- Ryan W. Miller, RTNET See , A When When White Supremacists Invade a City note 11 (comments of Kali Holloway, summarizing this long Charlottesville Rally Aimed to Defend a Confederate Statue; It May For Every Confederate Statue That Has Come Down in the United note note 23 (“As with other Confederate symbols, the Lee statue is an icon Dylann Roof Photos and a Manifesto Are Posted on Website supra supra Analysis, Violence Again Spurs Cities to Remove Confederate Monuments,But The The Statue at the Center of Charlottesville’s Storm , NPR (Aug. 14, 2017, 7:53 PM), https://www.npr.org/sections/thetwo- supra supra Tsesis, Tsesis, Richard Richard C. Schragger, Jacey Fortin, See Caroline Goldstein, Frances Robles, Nicole Lewis, US/ICOMOS, US/ICOMOS,

Efforts to remove Confederate monuments in Charlottesville, Virginia in the 59 60 61 56 57 58 55 confederate-monuments-but-many-find-hurdles-to-doing-so; block monument removal).block monument made visits to several Confederate monuments and posted pictures of himself with Charleston. in attack race-motivated brutal his before flag Confederate a after after the shooting, removal efforts by were slow—delayed public litiga- processes, removal. at hindering aimed specifically laws new state and tion, 58, 59 (2018); Colin Dwyer, Have Doomed Others have-doomed-ot. States, Ten Remain in Place (June 20, 2015), https://www.nytimes.com/2015/06/21/us/dylann-storm-roof-photos-website- charleston-church-shooting.html. www.washingtonpost.com/news/the-fix/wp/2017/08/17/violence-again-spurs-cities-to-remove-

https://networks.h-net.org/node/11465/pages/5361243/interview-kali-holloway-senior-director- make-it-right-project (last visited Feb. 3, 2021) (profiling the role of these groups in trying to https://www.usatoday.com/story/news/nation/2020/06/24/john-c-calhoun-statue-charleston- confederate-monument-data-1891878. 264 264 mon- controversial these to opposed been long have citizens Black surprisingly, Not andthey what uments represent. REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM uments have historically) as the meeting place for white supremacists. white for place meeting the as historically) have uments ened removal of the was monument so disruptive to their narrative that the events death of a Heather the counterprotes- Heyer, nonviolent including led to violence, the 2015 shooting by Dylann Roof in a Black church in Charleston, South Carolina Carolina South Charleston, in church Black a in Roof Dylann by shooting 2015 the that the movement monument began removal to take hold more generally. 2017), https://nyti.ms/2vudaMV. https://nyti.ms/2vudaMV. 2017), way/2017/08/14/543471538/charlottesville-rally-aimed-to-defend-a-confederate-statue-it-may- Many Many Find Hurdles to Doing So Senior Director Make It Right Project (Independent Media Institute) resistance—specifically related to a statute of John C. Calh monument. long-controversial John C. Calhoun, A Staunch Defender of Slavery for a “Unite the Right” rally. Right” the “Unite a for summer of 2017 became a rallying point for the alt-right who flocked to the town south-carolina-being-removed/3249924001/. tor. the antebellum South). In June 2020, Charleston’s city council voted unanimously to remove this this remove unanimouslyto voted council city Charleston’s 2020, June In South). antebellum the 43059-lcb_25-1 Sheet No. 140 Side B 03/17/2021 10:17:28 B 03/17/2021 140 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 141 Side A 03/17/2021 10:17:28

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, ALLEY EO https:// https:// (June 1, , V

, G (Nov. (Nov. 27, ORKER ORKER ORKER ORKER Y Stone Monuments Y (May 31, 2020), EW note14,636, 639–at EW This focus makes makes focus This ConfederateMonuments , N IMES , N , ling-of-george-floyd-fury- T supra The Fight Over Virginia’s

, LandscapeFairness: Removing (Aug. (Aug. 11, 2020), 4 (Univ. 4 Va. Sch. (Univ. L. L., Pub.

. 1081 (1995); Owley 1081 Owley & (1995); Phelps,

]; Peter Byrne, ]; Peter Byrne, TR 1, 4, 24 (2013); Sanford Levinson, Levinson, Sanford (2013); 24 4, 1,

. , N.Y. C

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. . 1259, 1301 (2020); Zachary Bray, R L.

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L. TAH L. 2019), https://papers.ssrn.com/sol3/papers.cfm? OVERTY

ENT ENT P Monuments of Folly of Monuments ARY .-K M

, 2013 U 2013 , HI A Crisis That Began with an Image of Police Violence Keeps Keeps Violence Police of Image an with Began That Crisis A & 6 (2020);Stephen Clowney,

. 2019-54,

M note 23, at702. Helier Cheung, Cheung, Helier , 70 C OUTHERN ORKS We Are All Growing Old Together: Making Sense of America’s .com/news/our-columnists/after-the-kil W , S supra supra (June 5, 2020), https://nyti.ms/2MsEaDY. https://nyti.ms/2MsEaDY. 5, 2020), (June see also , 61 W

THER Fury at America and Its Values Spreads Globally IMES IMES O

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note12, at 8; Phelps & Owley, note 59, at 61; Richard Schragger & C. Alex Retzloff,Alex C. Schragger& Richard 61; at 59, note & This video was soon accompanied by others, documenting anew anew documenting others, by accompanied soon was video This , BBC (June 8, 2020), https://www.bbc.com/news/world-us-canada-52969905 https://www.bbc.com/news/world-us-canada-52969905 2020), 8, (June BBC , Zachary Bray,

, supra , N.Y. supra supra , . 1, 5 (2018) [hereinafter Bray, Bray, [hereinafter (2018) 5 1, . EV The widespread worldwide protests that followed often involved calls for for calls involved often followed that protests worldwide widespread The R

Shawn Huber & Julie Bosman, Bosman, Julie & Huber Shawn Robin Wright, See, e.g. Evan Hill, Ainara Tiefenthäler, Christiaan Triebert, Drew Jordan, Haley Willis, & Robin Robin & Willis, Haley Jordan, Drew Triebert, Christiaan Tiefenthäler, Ainara Hill, Evan How George Floyd Was Killed in Police Custody L. Alex Hanson, Hanson, Alex UBLICATIONS

(July 30, 2020, 9:59 PM), https://www.vnews.com/Windsor-Selectboard-creates- . Recently, monument removal efforts were reinvigorated when a nation seques- nation a when reinvigorated were efforts removal monument Recently, To date, most of the discussion related to the complex issue of Confederate P SPLC Whose Heritage?

64 65 62 63 . M K EWS EMP AC and the Punitive Preemption: The Latest Assault on Local Democracy and Legal Theory Res. Paper Ser. see (discussing why these protests felt different than past protests different around than(discussing protests past why police brutality). felt protests these Discrimination from the Built EnvironmentBuiltDiscrimination the from abstract_id=3462746;Tsesis, Producing More www.splcenter.org/presscenter/splc-whose-heritage-dataset-updates-august-11-2020. Stein, Stein, and Flexible Laws: Removing Confederate Monuments Through Historic Preservation Laws F on They and Monuments, and Flags, Reflections Holidays, Whisper: State of the Construction Social Meaning in a Society Multicultural LifeandDeath Schragger, 40; 2020), 2020), https://www.newyorker N and monuments the of summary a committee-to-study-renaming-of-Jacob-Street-35480583. For Confederate symbols that have been removed since Charlottesville and George Floyd’s murder, of racism. Participants of the Unite the Right rally demonstrated that the Confederacy remains a symbol of slavery and segregation.”); Benjamin Wallace-Wells, 2017), https://www.newyorker.com/magazine/2017/12/04/the-fight-over-virginias-confederate- monuments. https://nyti.ms/2XMtUMa; TimePowerfulthis 2021] 2021] MONUMENTS CONFEDERATE PRIVATE 265 LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM

the continual pattern of brutality against Black Americans, often at the hands of the the of hands the at often Americans, Black against brutality of pattern continual the police. tered tered at home during a global pandemic watched a video Minneapolis, of Minnesota a murder police George Floyd officer by in kneeling on his neck for over eight minutes. the removal of racist names, flags, monuments, and other iconography in the United United the in iconography other and monuments, flags, names, racist of removal the elsewhere. and States monuments has centered on those located in public spaces. T Monument-Protection Monument-Protection Laws Monuments of Folly: How Local Governments Can Challenge Confederate “Statue Statutes” at-america-and-its-values-spreads-globally (profiling the wo at-america-and-its-values-spreads-globallythe (profiling see also Confederate Monuments: How the State’s Past Spurred a Racial Reckoning C Y 43059-lcb_25-1 Sheet No. 141 Side A 03/17/2021 10:17:28 A 03/17/2021 141 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 141 Side B 03/17/2021 10:17:28

M K Y ’ & C Y T OC ’ , S , NV HANGING HANGING C , 13 E However, at other ONUMENTS IN IN ONUMENTS nt#stream/0 (discussing a M UBLIC UBLIC P

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Gaston Gaston County Commission to Push for d ultimately occupy these public TONE LOG LOG S B various laws protecting public property property public protecting laws various note 12, at 1408. 1408. at 12, note (July 28, 2020, 10:26 PM), https://www. has made public monuments so controver- so public monuments made has Political power and agency are illuminated illuminated are agency and power Political spaces are read as expressing common sentiments, Removal efforts have often been led by local local by led been often have efforts Removal ANONS ANONS EWS push-referendum-monume At times, the public nature of the monument monument the of nature public the times, At supra C RITTEN IN ,

N note 65, at 9–10. ’ , WSLS (July 21, 2020, 9:48 PM), https://www.wsls. W (Sept. 13, 2017),

, Statuesand Statutes: LimitsRemovingMonuments on from Public supra supra OATES LOG LOG -or-go-franklin-county-leaders-to-put-confederate-monument- , B C Stay Stay or FranklinGo? County Leaders to Put Confederate Monument

: , , WFAE T EVINSON ’ L Life and Death 51, 55–56 (1995). Cast Cast in Stone: Monuments, Geography, and Nationalism OV G

. ConfederateMonuments andCivicWake Values Charlottesvilletheof in ISTORIANS ISTORIANS PACE S

CH ANFORD H (2d ed. 2018) (discussing these issues generally).

S & Adam Lovelady,

, Shane Dwyer, Dwyer, Shane , ., S Y g., David Boraks & Ann Doss Helms, ’ Monuments of Folly of Monuments See OC 31–32 The abilityof public monuments to essentially speak and convey a message S

, UNC See, e. Nuala Nuala Johnson, Phelps, & Owley Bray, See, e.g. See, e.g Upton, Dell

D:

In efforts to remove Confederate monuments, the public location of these stat- these of location public the monuments, Confederate remove to efforts In . 72 68 69 70 71 66 67 RCHITECTURAL LAN OCIETIES unc.edu/statues-statutes-limits-removing-monuments-public-property/ (noting this limit under Carolina’sNorth monument protection law). or symbols, such as state statue statutes (which were enacted to block local munici- local to block enacted were as (which statutes or such symbols, state statue palities from removing a monument without state approval). or historical viewpoint is precisely what precisely is viewpoint or historical sial. can add to obstacles its removal, triggering Referendum on Monument wfae.org/post/gaston-county-commission- county commission seeking voter approval via a referendum before proceeding withremoval). monument com/news/local/2020/07/22/stay Where public investment goes to supporting controversial symbols, such as paying gov- in convincing role large a play can pressure political maintenance, ongoing for ernment officials to make a change. times the public aspect of the monument makes the resource vulnerable to removal removal to vulnerable resource the makes monument the of aspect public the times or local processes. using the state initiative public by beas facilitated can removal

A research/sah-blog/sah-blog/2017/09/13/confederate-monuments-and-civic-values-in-the-wake- of-charlottesville (“Although statues in civic P S 266 266 sense. Public monuments are the most problematic as they give voice to the ideals that a wishes to community hold up. REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM by which groups have been able to navigate the informal and formal political pro- cesses necessary to erect such monuments spaces. an ues can be a double-edged sword. seeking a nonbinding referendum, before removing Confederate monuments in Tennessee). Most Most Tennessee). in monuments Confederate removing before referendum, nonbinding a seeking laws that protect public monuments do not apply to privately owned monuments located on land.private Property Removal on Election Day Referendum removal-on-election-day-referendum/ (discussing the Franklin County Board of Supervisors this was not the case for Confederate statues (and some others, of course). Confederate monument Confederate course). of others, some (and statuesConfederate for case the not was this builders overrode public sentiment that ranged from that publicindifference hostility.”). buildersto sentiment overrode ranged 43059-lcb_25-1 Sheet No. 141 Side B 03/17/2021 10:17:28 B 03/17/2021 141 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 142 Side A 03/17/2021 10:17:28

, / and and monument - Charles City to Let Let to CharlesCity (July 30, 2020), 2020), 30, (July ISPATCH Protesters Topple Statue of s, removal had not happened not had removals, -D IMES T pple-statue-of-confederate-president- Local officials decide it is better to to better is it decide officials Local governor-signs-law-removing-confederate- (Nov. 3, 2020), https://richmond.com/ https://richmond.com/ 2020), 3, (Nov. voters-decide-fate-of-confederate (June 11, 2020, 6:28 AM), https:// - ICHMOND ICHMOND let note 12, at 1473. 1473. at 12, note , R cting such monument such cting -to- ISPATCH UARDIAN -D supra city , - , G IMES 20/jun/11/protesters-to T harles For example, adrawn-out removalbattle over whether Governor Signs Law Removing Confederate Design from Design from Removing Law Confederate Signs Governor Mississippi Williamsburg City Council Votes Confederate Williamsburg to Memorial City Council Remove ProtestersTopple Statue ofJefferson Davison Richmond’s Monument UPDATE: Charles City Votes No in Advisory Referendum on Moving

Life and Death Sometimes local governments appear to condone the action. action. the condone to appear governments local Sometimes Sometimes local officials go through a formal process, formal a through go officials local Sometimes ICHMOND ICHMOND Sometimes local governments remove monuments without without monuments remove governments local Sometimes /news/local/c (June 11, 2020), https://www.nytimes.com/2020/06/11/us/Jefferson-Davis- 2020), 11, (June , R com . , Alexa Doiron, IMES ., Debbie Elliot, ., Elliot, Debbie T

MichaelLevenson, (July 14, 2020), https://wydaily.com/local-news/2020/07/14/williamsburg-city- 2020), 14, (July , NPR (June 30, 2020, 6:25 PM), https://www.npr.org/sections/live-updates-protests- In Richmond, Virginia, protestors pulled down the statue of a week after See Stoney he announced remove would came Mayor down, Davis statue the After Jefferson Owley & Phelps, Phelps, & Owley See, e.g See, e.g. the by outlined process followingthe is county example,the for Virginia, CharlesCity, In , N.Y. , richmond Recently, Recently, we also have seen removal by overtly illegal public action—by offi- AILY 78 79 75 76 73 74 77 D Y M K in-virginia. www.theguardian.com/us-news/20 than 55% voted not to remove and about 45% of the county’s voters voted in favor. The ballot questionvoters:askedSupervisors of“ShouldCharlesboth removeofBoard the theCounty City Old the inside memorial War Civil the and Courthouse Old the of front in monument War Civil Courthouse?” Andrew Cain, Confederate Statue at at a pace that protestors Confederate felt was appropriate. President Peter Beaumont, in Virginia Voters Voters Decide Fate of Confederate Monument monuments. Long delayed by a stateprote lawa delayedmonuments.byLong State Flag W state Confederate monument removal law and Martz, Michael courthouse. scheduled the of front in monument Confederate a the remove voter referendum on whether to cials and by private citizens. private by and cials sometimes they take down monuments quickly to prevent vandalism and violence. and vandalism prevent to quickly monuments down take they sometimes Statue-Richmond.html?action=click&module=RelatedLinks&pgtype=Article. Statue-Richmond.html?action=click&module=RelatedLinks&pgtype=Article. council-votes-to-remove-confederate-memorial/. https:// article_2c5084de-370c-51f3-b068-fd5827533ece.html. The removal referendum failed as more 2021] 2021] advocates’ and groups’ in to community response to remove deciding governments pressure to do so. MONUMENTS CONFEDERATE PRIVATE 267 LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM

the Silent Sam statue at the University of North Carolina would remain in place ended in the middle of the night when those frustrated by inaction stepped in to remove it illegally. news/state-and-regional/govt-and-politics/update-charles-city-votes-no-in-advisory-referendum- MayorLevar Stoney said he was pushing for legislation to remove all the city-owned Confederate Avenue for-racial-justice/2020/06/30/885779855/mississippi- design-from-state-flag (explaining the City of Mobile’s decision to pay a $25,000 fine to remove ment’s remnants. For example, when protestors toppled the Jefferson Davis statue in Richmond, Vir- Richmond, in statue Davis Jefferson the toppled protestors when example, For ginia, police officers and a tow truck waited nearby and hauled away the monu- complying with monument protection laws. on-moving-confederate-statue/article_fe12b0c7-9077-5c4a-aeec-ad3028121430.html. a Confederate a monument). Confederate C Y 43059-lcb_25-1 Sheet No. 142 Side A 03/17/2021 10:17:28 A 03/17/2021 142 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 142 Side B 03/17/2021 10:17:28

M K C Y , WBHM Madison County County Madison

State v. Birmingham, 229 229 Birmingham, v. State see (June 8, 2020), https:// https:// 2020), 8, (June (Aug. 16, 2017), https:// https:// 2017), 16, (Aug. UN COM S

. Citing ‘Safety and Security,’ Pugh Has , AL. ALT Lawsuit Filed to Stop Mayor Stoney from Monuments have been sold to pri- to sold been have Monuments (July 2, 2020), https://www.virginia More Voices Say Take Down Take Say Voices More , B (July 2, 2020), https://richmondbizsense.com/ ERCURY M Nonprofit Nonprofit Aims to Cover Cost to Remove City-Owned ENSE

note note 65, at 3–4 (profiling the transfer of Louisville’s S . , Lee Roop, (July 8, 2020, 3:57 PM), https://www.nbc12.com/ A IZ Hannah Smith,

B They May Sit on Public Land, But Not All Confederate , V supra supra See , See, e.g. , NBC Jack Jack Jacobs, Theyhave even been relocated to private landsat taxpayer Monuments have been gifted or sold to the SCV and the the and SCV the to sold or gifted been have Monuments ICHMOND ICHMOND See What Should Happen to Confederate Statues? A City Auctions One for $1.4 $1.4 One for Auctions A City Statues? Confederate to Happen Should What , R Crews Remove 115-Year Old Birmingham Confederate Monument (June (June 22, 2019), https://www.nytimes.com/2019/06/22/us/confederate-

IMES IMES , Sarah Vogelsong, , Colin Campbell & Luke Broadwater, T Sometimes the removalsare based onpublic safety—removing rallying

Monuments of Folly of Monuments N.Y.

Bray, See, e.g. Mervosh, Sarah See, e.g. Gigi Douban, , When public Confederate monuments are removed, they sometimes move 82 83 84 81 80 So. So. 3d 220 (Ala. 2019). Paying this fine has become a strategy for many communities to remove problematic monuments in the face of this law, and some advocacy groups have raised funds to pay on communities’the behalf. removal of the monument would violate the state’s monument removal statute but would only result in a one-time fine of $25,000, which the city agreed to pay); Confederate Monument; Group Offers to Pay Fine Removing Confederate Statues confederate-monument/ (noting that the Supreme Court of Alabama had previously held that all-confederate-monuments-are-publicly-owned/ (profiling the removal of monuments these organizations retain some ongoing where interest). Confederate Monuments points, points, protecting protestors from potential injury in their efforts to remove these of people socialgatherings where is distancing preventing and statues, often sizable observed. not Monuments Monuments Are Publicly Owned Million 2020/07/08/lawsuit-filed-stop-mayor-stoney-removing-confederate-statues. 2020/07/08/lawsuit-filed-stop-mayor-stoney-removing-confederate-statues. www.baltimoresun.com/maryland/baltimore-city/bs-md-ci-monuments-removed-20170816- 2020/07/02/nonprofit-aims-to-cover-cost-to-remove-city-owned-confederate-monuments/ 2020/07/02/nonprofit-aims-to-cover-cost-to-remove-city-owned-confederate-monuments/ vate parties via auction. via parties vate the remaining monuments on city property. He proceeded to do complied so even with though the he process had outlined not by the state monument concerns removal and nuisance law, principles. citing public safety (June 2, 2020), https://wbhm.org/feature/2020/crews-remove-115-year-old-birmingham- 268 268 than in have removed it stand a pay and a of have fines in place monument honor town. their REVIEW LAW CLARK & LEWIS 25.1 [Vol. in and erection their funded having organizations on these based (sometimes UDC some instances having reversionary interests). LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM

from public from public to (e.g., a public town removing finds community willing to another take the monument). mercury.com/2020/07/02/they-may-sit-on-public-land-and-be-governed-by-state-laws-but-not- www.al.com/news/huntsville/2020/06/more-voices-say-take-down-madison-county-confederate- monument-group-offers-to-pay-fine.html (profiling efforts to remove a Confederate monument in Huntsville,Alabama).This campaign builds upon the efforts of local groups to cover the costs of removing monuments. Confederate monument to Brandenburg, also in Kentucky). Baltimore Baltimore Confederate Monuments Taken Down story.html. story.html. (examining fundraisea these to Richmond-basedcosts). effort cover to community land trust’s 43059-lcb_25-1 Sheet No. 142 Side B 03/17/2021 10:17:28 B 03/17/2021 142 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 143 Side A 03/17/2021 10:17:28

, . RK A

. (July St. Johns AG N.W. M

, are new, are Arkansas Arkansas Statues These removals removals These ETHESDA ETHESDA Jessica Clark, B

ry County, Maryland’s , See (June 21, 2020, 12:30 PM), Stephen Simpson, Simpson, Stephen AZETTE -G see also Augustine Augustine of Beleaguered Confederate Monument ] (describing Montgome EMOCRAT D

. (Oct. 22, 2017, 5:00 AM), https://www.latimes.com/ https://www.latimes.com/ AM), 5:00 2017, 22, (Oct. RK A Rockville Confederate Statue Removed

IMES Hot SpringsHot GivenOptionsStatue 2 RemoveRebel to T

of a Confederate monument to private land). , N.W. , L.A. nafter Metcalf, 2017 (June 13, 2020, 7:52 AM), https://www.arkansasonline.com/news/2020/ (Aug. 6, 2020, 11:39 PM), https://www.firstcoastnews.com/article/ https://www.firstcoastnews.com/article/ PM), 11:39 2020, 6, (Aug. As Monuments to the Confederacy Are Removed from Public Squares, New Ones Ones New Squares, Public from Removed Are Confederacy the to Monuments As EWS III. PRIVATE CONFEDERATE MONUMENTS MONUMENTS CONFEDERATE PRIVATE III. N , Andrew Metcalf, .,Cassidy Kendall, AZETTE -G Confederate monuments housed in storage units and basements do not not do basements and units storage in housed monuments Confederate OAST OAST See,e.g Jarvie, Jenny See, e.g. Interestingly, in at least one relocation effort, continuing public access at a new site was C As As we out laid we above, beginning are to in a see theshift material landscape The private monuments we examine herein have either always been private or or private been always either wehave herein examine The monuments private 87 88 85 86 M K EMOCRAT IRST IRST Fall, Fall, Raising Fresh Debate d50b-405e-89f8-66172d316169. nation/la-na-new-confederate-memorials-20171020-story.html nation/la-na-new-confederate-memorials-20171020-story.html (summarizing this trend with a jun/13/city-given-2-options-to-move-rebel-statue/; https://www.arkansasonline.com/news/2020/jun/21/statues-fall-raising-fresh-debate (profiling property on monument is located Park, a where Memorial Confederate Springs’ Hot over debate cited as a positive factor by the local government removing the statue. County Park Owner Offers Land to Relieve St. F from often to public spaces lead monuments as Confederate private detailed in the next Section. D statues-dallas-nashville.html. news/local/park-owner-site-proposed-for-st-augustine-confederate-monument/77-27521589- 2021] 2021] expense to the simply move monuments out of space. the public MONUMENTS CONFEDERATE PRIVATE 269 LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM

concern us. Monuments located out of the public view are not as problematic or of of or problematic as not are view public the of out located Monuments concern us. concern. pressing focus on a monument in Orange, Texas). Texas). Orange, in monument a on focus 24, 2017, 9:56 AM), https://bethesdamagazine.com/Bethesda-Beat/2017/Rockville-Confederate- AM), 9:56 2017, 24, owned by the UDCwho has no interest in removing it). Are Quietly Being Erected of the statues and obelisks. We are generally not concerned with private monuments monuments private with concerned not generally are We obelisks. and statues the of unless there is some access continuing public of degree to statues these or (physical visual). of Confederate monuments from public to private. By private Confederate monu- public to from By Confederate private private. monuments of Confederate ments, we refer to interests privately ownership the owned not status, Confederate landownership the on monuments centers analysis located Our lands. on private have recently become private. Many private monuments, but not all, Statue-Removed/ Statue-Removed/ [herei decision to pay for relocation C Y 43059-lcb_25-1 Sheet No. 143 Side A 03/17/2021 10:17:28 A 03/17/2021 143 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 143 Side B 03/17/2021 10:17:28

- M K EW C Y New , N

EMOCRAT D

. RK (Oct. 23, 2017, 2017, 23, (Oct. A

N.W. note 88; Tom Porter,

, EWSWEEK , N supra In suchcases, the monuments A historian at the University of of University the at historian A

american.com/culture/history/item/26865- Newly private (or previously public) monu- public) previously (or private Newly Louisiana Parish Can Remove Confederate Statue from Virginia Virginia Beach Will Remove Confederate Monument from City (July 23, 2020, 8:51 PM), https://www.pilotonline.com/ note 86 (profiling the city’s decision-making process and other other and process decision-making city’s the (profiling 86 note note 12. As demonstrated in our examples below, new monuments oc- monuments new below, examples our in demonstrated As supra ILOT ILOT

supra supra -P State Board Discusses Confederate Monument More More Confederate Monuments Going Up – On Private Land note 88. Section III. , Clark, , Alissa Skelton, ., Janet McConnaughey, supra supra IRGINIAN (Sept. 6, 2017), https://www.thenew In other cases, local governments convey the to monuments or- private , 4WWL (July 22, 2020, 8:01 PM), https://www.wwltv.com/article/news/state/ (Aug. 5, 2020, 4:00 AM), https://www.nwaonline.com/news/2020/aug/05/state- , V Steve Steve Byas, Jarvie, See infra See, e.g. See, e.g See, e.g. Mike Jones, The placement of new monuments on private land may show that Confederate Confederate that show may land private on monuments new of placement The There are no comprehensive statistics regarding private Confederate monu- 94 95 90 91 92 93 89 AZETTE MERICAN MERICAN 76a8eede56dd (discussing deal struck between the UDC and local parish to relocate a courthouse courthouse a relocate to parish local and UDC the between struck deal (discussing 76a8eede56dd monument to private land, albeit at considerable public expense). louisiana-parish-can-move-confederate-statue-from-courthouse/289-10e46897-d9f8-49ae-b1fe- may be re-erected on private lands. cur largely (but not exclusively) on private property. private on exclusively) not (but largely cur ganizations or individuals who do not assert a previous ownership interest. ownership previous a assert not do who individuals or ganizations government/local/vp-nw-virginia-beach-confederate-monument-0724-20200724-572xkpcxdv d6pdxfgn5v6r4ujm-story.html (discussing removal and the city’s plan, if no historical society or A 12:39 PM), https://www.newsweek.com/new-confederate-monuments-are-quietly-going-across- locations considered, including a federal cemetery, a request the Veteran’s Association denied, and denied, Association Veteran’s the request a cemetery, federal a including considered, locations a museum, which would have involved additional costs). Courthouse monuments are not as accepted as they were before or may represent an attempt to to an attempt represent may or as were before they accepted as are not monuments G 270 270 conveyed. newly or REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM ments. Studies by the Southern Poverty Law Center and others generally do not encompass private sites as comprehensively as they do public monuments (likely given the comparative significance of public monuments and the challenge of get- suggest reports recent number the However, monuments). private on ting statistics of private Confederate monuments is growing. alone. state his in twenty noted Carolina North Confederate Monuments Are Quietly Appearing Across the U.S. ments are those transferred from local governments. Sometimes these monuments public owned Privately are returning. to whom they entities private by were owned often UDC with the efforts, the of have been subject monuments recently removal agreeing (either enthusiastically or begrudgingly) to remove (sometimes moving them to or parks cemeteries owned and privately with sometimes no clear destina- tion set). Grounds expressesmuseum interest, convey to SCV). the eitheror to UDC it the us-690798; Tavernise, board-discusses-confederate-monument/ (examining the relocation of Bentonville’s Confederate of Confederate the Bentonville’s relocation (examining board-discusses-confederate-monument/ publicfrom squaremonument ato park private owned by UDC). the more-confederate-monuments-going-up-on-private-land; Jarvie, more-confederate-monuments-going-up-on-private-land; 43059-lcb_25-1 Sheet No. 143 Side B 03/17/2021 10:17:28 B 03/17/2021 143 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 144 Side A 03/17/2021 10:17:28

, . . , EL EX , D , T OLITICO , P Landowners (July 5, 2020), 2020), 5, (July AILY With notable excep- notable With D -confederate-cemetery-

Others are located near historic AVALIER , C (Feb. 26, 2018), https://www.virginia.org/ u-va-restricts-access-to ORG . Some even tryto imply that themonuments IRGINIA e/2020/07/ , V note 96 (profiling vote to remove North Carolina monument butmonument Carolina North remove to vote (profiling 96 note nument to the SCV on being placed in a location that allows The ‘Terrifying’ Confederate Statue Some Tennesseans Want to Hide to Want Tennesseans Some Statue Confederate ‘Terrifying’ The U.Va. Restricts Access to Confederate Cemetery, Monument Amidst or already-established monuments. already-established or DelawareLeaders Make MovesNo Oustto Confederate Monument supra supra Lawmakers Urge Removal of Robert E. Lee Statue at Antietam

note 88. Peter Holley,

supra supra ., WBTV, WBTV, ., , (June (June 25, 2015, 5:00 AM), https://www.washingtonpost.com/news/morning- (Apr. 7, 2015), https://www.texasmonthly.com/the-daily-post/coming-soon-a-large- 2015), 7, (Apr. OST MargieFishman, Jarvie, e.gSee, Turner Ashby Monument P (Aug. 15, 2017, 6:46 PM), https://www.delawareonline.com/story/news/2017/08/15/ See, e.g. Austin Wright, Geremia Di Maro, See Gaston County Commissioners Vote to Remove and Relocate Confederate Monuments or cemeteries, or

. The siting of these private monuments varies. Some landowners have chosen The best way to understand the shape and impact of these new private Con- 100 101 102 103 97 98 99 96 ASH M K ONTHLY NLINE commissioners-vote-remove-relocate-confederate-monument/. commissioners-vote-remove-relocate-confederate-monument/. conditioning grant of the mo continuing public access). listings/HistoricSites/TurnerAshbyMonument/. Coming Soon: A Large Confederate Memorial on I-10, Just Inside the Texas State Line sites, often grant or facilitate public access. public facilitate or grant often from celebrating to memorializing; it is likely also a question of cost. of question a also likely is it memorializing; to celebrating from found, are they where like, look monuments these what illustrate monuments—we tions mentioned below, new monuments tend to be more modest. Perhaps monu- a shift represents change perhaps the or profile lower a seeking are ment supporters (Aug. (Aug. 19, 2017, removal-robert-e-lee-antietam-241788 Service Park (profiling National the 7:46 outbidding the buyer private a complex involving AM), battlefield history Antietam the on of located https://www.politico.com/story/2017/08/19/lawmakers-urge- the Lee monument inclusion in for and then land,landthe selling the park). erecting monument, the the for Nationwide Removal of Statutes and Monuments WBTV (July 31, 2020, 7:12 AM), https://www.wbtv.com/2020/07/31/gaston-county- O mix/wp/2015/06/25/is-this-the-weirdest-confederate-statue-in-dixie/; John Nova M Lomax, 2021] 2021] exist- many of removal the to led have issues that process public and legal the avoid ing private Often, lands monuments. are the only for option as these monuments MONUMENTS CONFEDERATE PRIVATE eroded—leaving has erection to their led initially that support political the popular with interest fewer in communities having a installed monument new Confederate arena. public in a 271 LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM

placements of their memorials for public visibility. public for memorials their of placements https://www.cavalierdaily.com/articl delaware-leaders-make-no-moves-oust-confederate-monument/570039001/. confederate-memorial-on-i-10-just-inside-the-texas-state-line/. confederate-memorial-on-i-10-just-inside-the-texas-state-line/. monument-amidst-nationwide-removal-of-statues-and-monuments. are on public land by strategic placement and naming. placement strategic by land on public are W federate federate monuments is through examples that present the most common issues. Through descriptions of ten statues—a sort of field guide to private Confederate C Y 43059-lcb_25-1 Sheet No. 144 Side A 03/17/2021 10:17:28 A 03/17/2021 144 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 144 Side B 03/17/2021 10:17:28 , M K C Y There ments suggest possible , HBO (Oct. 28, 2017), ., https://www.battlefields.org/learn/ R T

vestments vestments or entitle of monuments in parks, cemeteries, private ATTLEFIELD B (June 10, 2020), https://www.timesfreepress.com/ https://www.timesfreepress.com/ 2020), 10, (June

. M RESS in honor. his P , A REE F Tennessee Tennessee Lawmakers Vote to Keep Nathan Bedford Forrest Day Tennessee Tennessee Governor Faces Backlash for Honoring Confederate General and note 97. Forrest’s troops were also involved in one of the worst issues of of issues worst the of one in involved also were troops Forrest’s 97. note IMES IMES T Last Week Tonight with John Oliver: Confederacy Oliver: John with Tonight Week Last supra , , NPR (July 14, 2019, 7:24 PM), https://www.npr.org/2019/07/14/ A native of Tennessee, Nathan Bedford Forrest was a prominent Confed- Holley, Nora Eckert, Andy Sher, See, e.g. Nathan Bedford Forrest Placement and context matter for each of these monuments. We ask readers to to readers ask We monuments. these of each for matter context and Placement Our first monuments on is category private Confederate land owned by indi- 1. Nathan Bedford Forrest Statue in Nashville, Tennessee Tennessee Nashville, in Statue Forrest Bedford Nathan 1. mon- Confederate private ridiculed) most perhaps (and known best the of One 105 106 107 104 HATTANOOGA HATTANOOGA racial violence during the war—the execution of surrendering Black troops at Fort Pillow in early in Pillow Fort at troops Black surrendering of war—theexecution the during violence racial 1864. are several statues and memorials to him in the state that still a regularly celebrates observance” special of “day yards, and even golf courses. While private Confederate monuments may seem like like seem may monuments Confederate private While courses. golf even and yards, com- with typology growing a is this that highlight examples our category, narrow a basis case-by-case a on site each at look to need the demonstrate We variations. plex monuments. Feb. biographies/nathan-bedford-forrest visited (last 2021).23, KKK Leader leade. C https://www.hbo.com/last-week-tonight-with-john-oliver/2017/56-episode-115-confederacy- 272 272 and the complex mixture of public and private interests involved. We begin with monuments that were initially erected on private land with private money. These monuments were never found on public land and therefore are the most clearly private. From there, we detail some more nuanced examples—those that began as sen- public growing of because lands private to shifted REVIEW LAW then CLARK & and LEWIS monuments public timent. Last, we detail some examples of private Confederate monuments where significant tax in benefits or public other scrutiny. public for greater reasons 25.1 [Vol. consider the differing implications LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM erate commander and the first of the . Klux Ku the of Wizard Grand first the and commander cavalry erate 741629271/272ennessee-governor-faces-backlash-for-honoring-confederate-general-and-kkk- and the potential that challenges the shift from public to private monuments may implicate. Removing a monument from a public forum may mean that the battle over these pernicious statues will be not be over, but simply shifted to a different effective. less even be may tools advocates’ removal where monument battlefield A. Individual Landowners Landowners Individual A. viduals. viduals. uments is a 25-foot fiberglass statue of Nathan Bedford Forrest in Nashville, Ten- nessee. 43059-lcb_25-1 Sheet No. 144 Side B 03/17/2021 10:17:28 B 03/17/2021 144 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 145 Side A 03/17/2021 10:17:28

The The see also ENNESSEAN ENNESSEAN , T , , T , WKRN (July 20, Dorris was even was even Dorris (June 10, 2020, 3:34 PM) (Dec. 27, 2017, 12:31 PM), ENNESSEAN , T ENNESSEAN m/story/opinion/2017/08/15/conceal-nathan- Nathan Nathan Bedford Forrest Statue off I-65 Painted yor yor renewing call to visually block the statue); ares ares the vandals to be cowards, saying “anybody Tennessee Tennessee Gov. Bill Lee Will No Longer Proclaim , T an Bedford Forrest Day, but voted to keep the day a policy hard to reconcile with the original original the with reconcile to hard policy a In 2015, politicians and citizens petitioned the the petitioned citizens and politicians 2015, In In December 2017, vandals coated the statue with Conceal Nathan Bedford Forrest Statue from I-65from Statue Forrest Bedford Nathan Conceal Natalie Allison, Allison, Natalie note 106. In June 2020, Tennessee legislators filed a bill to eliminate

note 109. State Denies Nashville’s Request to Block I-65 Forrest Statue note 97. supra See also supra supra During the 2020 state legislative session, Tennessee State Repre- supra supra , Heidi Campbell, Heidi , note 109. TDOT TDOT Denies Request to Block Nathan Bedford Forrest Statue Alongside a written article, thewebsite includes a video interviewwith the landowner supra supra Garrison, Garrison, Natalie Neysa Alund & Natalie Allison, Id. Holley, Joey Garrison, See,e.g. The The garish statue was commissioned by Bill Dorris in 1998, who strategically 111 112 113 108 109 110 M K forrest-statue/ forrest-statue/ (also providing an image of the statue Garrison, as viewed from the highway); Nathan Bedford Forrest Day After Legislature Passes Bill itself on state books. Tennessee can proclaim Nathan Bedford Forrest Day if they wish, but the governors will no longer longer no will governors the but wish, they if Day Forrest Bedford Nathan proclaim can Tennessee proclamation. this make to required be state Department of Transportation to plant vegetation to to plant block vegetation the of statue. stateTransportation Department 2015, 4:29 PM), http://wkrn.com/2015/07/20/tdot-denies-request-to-block-nathan-bedford- (July 20, 2015, 10:18 AM), http://www.tennessean.com/story/news/politics/2015/07/20/state- denies-nashvilles-request-block-forrest-statue/30412745/. (Aug. 15, bedford-forrest-statue-65/570514001/ (local ma 2017), Sarah Denson, http://www.tennessean.co sentative Jason Powell proposed an amendment to fund the planting of trees to able to get the state transit authority to clear vegetation on the adjacent public land land public adjacent the on vegetation clear to authority transit state the get to able to make the statue more visible. special observance, including Nathan Bedford Forrest Day. Before 1969, these days were official Eckert,holidays. state Nathan Bedford Forrest Day completely in Tennessee, but the bill was governor amended was not so required that to proclaim the it as a special day. Some Tennessee legislators fought to return the bill to its previous state, but the amendment failed. Ultimately, the Tennessee Senate removed the governors’ proclamation of Nath Pink, Owner Bill http://www.tennessean.com/story/news/2017/12/27/nathan-bedford-forrest-statue-nashville- Dorris Will Not vandalized-pink/984740001/. Repair who declares his display of the work to be decl Dorris irony, of within sense apparent any without his First Amendment rights. Additionally, https://www.tennessean.com/story/news/politics/2020/06/10/bill-lee-no-longer-proclaim- nathan-bedford-forrest-day-tennessee/5336437002/. This means that future governors of news/local/story/2020/jun/10/tennessee-lawmakers-vote-keep-nabedford-forre/525012/. news/local/story/2020/jun/10/tennessee-lawmakers-vote-keep-nabedford-forre/525012/. Accor- ding to state law, the must issue proclamations for six separate days of 2021] 2021] MONUMENTS CONFEDERATE PRIVATE 273 LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM

to the work. pink paint. Dorris declared he will not remove the paint as it brings more attention attention more brings it as paint the remove not will he declared Dorris paint. pink placed it on his land to be easily viewed from the I-65 highway. from viewed easily it on his to be land placed state agency denied the request asserting that it does not plant vegetation simply to to simply vegetation plant does it not theasserting that state request denied agency block views that people do not like, land land clearing to make the monument more visible. Over the years, the statue has been repeatedly vandalized. C Y 43059-lcb_25-1 Sheet No. 145 Side A 03/17/2021 10:17:28 A 03/17/2021 145 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 145 Side B 03/17/2021 10:17:28

, . , , : - M K AG C Y -i-65 M EPORT at 16. 16. at Rockville R ETHESDA ETHESDA County County Id. , B , TAFF ETHESDA ETHESDA S B

, 11 (2015). The se grounds in 1971. in grounds se

urthouse, but the city QUARE S of its easement.

The county applied to to applied county The Andrew Andrew Metcalf, OMMISSION Id. Id. C A verse on the base of the the of base the on verse A see also ISTRICT ISTRICT (June (June 17, 2020), https://fox17.com/ D OURTHOUSE moved to the courthou the to moved C

re under the terms 29

ISTORIC ISTORIC ASHVILLE H N ervation ervation easement on the co

Some Tennessee Lawmakers Stop Amendment to Hide 17 OX OCKVILLE OCKVILLE R , F Across State, Marylanders Weigh Removing Confederate Memorials Confederate Removing Weigh Marylanders State, Across (July 27, 2015), http://blog.historians.org/2015/07/debating-the- 2015), 27, (July HDC2016-00756, , WKRN (June 16, 2020, 4:29 PM), https://www.wkrn.com/ ITY OF OF ITY Leggett Says Work Underway to Remove Confederate Statue in Rockville County Must Apply to Get Rockville Confederate Statue Moved ConfederateStatue Rockville Get to Apply Must County C Amendment to Block Nathan Bedford Forrest Statue From I-65 View with with View I-65From Statue BedfordForrest Nathan Block to Amendment ODAY

, T

note 120. 120. note The Tennessee House voted to table the amendment 66-29. amendment the table to voted House Tennessee The PPROVAL state-rep-files-amendment-to-block-nathan-bedford-forrest-statue-from A ASHIRI supra . (July 21, 2015, 1:15 PM), https://bethesdamagazine.com/bethesda-beat/ B /tn- , Marissa, Horn, .: AHA .: AG All History Is Local: Debating the Fate of a Confederate Soldier Statue in Maryland in Statue Soldier Confederate a of Fate the Debating Local: Is History All IST Aaron Kraut, Kraut, Aaron M H HEILA HEILA . (Sept. 16,2015), https://marylandreporter.com/2015/09/16/across-state-marylanders- Andrew Andrew Metcalf, See Metcalf, Erika Erika Glover & Adrian Mojica, been had it but 1913, to dates itself statue The S See,e.g. Sebastian Posey, Posey, Sebastian EP ON . 2. Johnny Reb Statue in Montgomery County, Maryland Maryland County, Montgomery in Reb Statue 2. Johnny Reb, Johnny called soldier, Confederate solitary a of statue 1913 a 2015, Until After After the Charleston murders in June 2015, citizens and elected officials in . (July 31, 2015, 9:37 AM), https://bethesdamagazine.com/Bethesda-Beat/2015/County- R 119 120 121 115 116 117 118 114

. AG D ERTIFICATE OF ETHESDA ETHESDA ERSP the Rockville Historic District Commission for removal because the courthouse it- the courthouse because for removal Commission District Historic the Rockville self is a historic designated resource subject to a local district historic ordinance. news/local/some-tennessee-lawmakers-stop-amendment-to-block-statue-of-former-kkk-leader. Executive Ike Leggett immediately agreed to its removal. politics/leggett-says-work-underway-to-remove-confederate-statue-in-rockville/. fate-of-a-confederate-soldier-statue/. fate-of-a-confederate-soldier-statue/. view-with-newly-planted-trees/. The request was granted because, while the grounds of a designated historic resource, it monument did not contribute to the courthouse’s was located upon the later. much grounds the to relocated been as it had significance And there it remains. remains. it And there sat in front of the Montgomery County Courthouse. B M Must-Apply-to-Get-Rockville-Confederate-Statue-Moved/; HistoricDistrict Commission Grants County’s RequestMoveConfederate to Statue http://www.bethesdamagazine.com/Bethesda-Beat/2015/Rockville- AM), 11:22 2015, 18, (Sept. Historic-District-Commission-Grants-Countys-Request-to-Move-Confederate-Statue/. Statue of Former KKK Leader Seth Denbo, P C M [who] ride[s] around with a sheet over his head bemust with[who] a ride[s] a around sheet coward.” over Trees Tabled by TN House news/local-news 274 274 statue. the shield REVIEW LAW CLARK & LEWIS 25.1 [Vol. Montgomery County, Maryland called for removal of the monument. LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM

Maryland Historical Trust also held a pres concluded that the astatue not was featu protected pedestal pedestal read: “That we through life may not forget to love the thin gray line,” a army. Confederate by the uniforms worn the to reference weigh-removing-confederate-memorials/. weigh-removing-confederate-memorials/. 43059-lcb_25-1 Sheet No. 145 Side B 03/17/2021 10:17:28 B 03/17/2021 145 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 146 Side A 03/17/2021 10:17:28

- see see See site - . (Aug. (Aug. .

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. H , P , ASH Initial efforts in- efforts Initial confederate , W , Efforts to move it to to it move to Efforts CTIVIST expensive expensive to relocate. A

note 85 (quoting Leggett as Leggett (quoting 85 note , Meetingswith commu- -spot-for- supra finds - The box obscured mostof the statue County councilmembers objected to to objected councilmembers County Metcalf,2017, montgomery s big and heavy, making it see also also see ; The county was worried about having to pay to to pay to having about worried was county The Id. . (Sept. 17, 2017, 9:20 AM), https://bethesdamagazine.com/ https://bethesdamagazine.com/ AM), 9:20 2017, 17, (Sept. . .com/local/ AG M No Country for Johnny Reb or Bobby Lee Bobby or forJohnnyRebCountry No Public Response Shows Strong Objections to Moving Confederate Statue ConfederateMoving to ObjectionsStrong Shows Response Public

. (Feb 10, 2016, 10:26 https://bethesdamagazine.com/bethesda- AM), . (Aug. 28. 2015, 9:37 AM), https://bethesdamagazine.com/bethesda- Montgomery Montgomery County Presents Five Options for Relocation of Confederate City of Rockville Rejects County’s Request to Take Controversial Confederate note 122. 122. note ETHESDA ETHESDA AG AG New Spot for Confederate Statue: Site of Historic Ferry Historic of Site Statue:Confederate for Spot New note 65, at 1. Estimates for the weight of the monument vary from 11,000 from vary monument the of weight the for 65, 1. at Estimates note , B , washingtonpost M M ControversialFerryWhite’s to ConfederateMovesSoldier Statue supra note 118. supra Aaron Kraut, The The basis for the conclusion that the monument needed to stay in the county is supra supra ETHESDA ETHESDA ETHESDA Aaron Aaron Kraut, also See Turque, Turque, Rotenstein, S. David Id. Byrne, Bill Turque,Bill Aaron Kraut, https://www. , B , B Once the county decided to remove the monument, it had trouble finding a Yet, it took a while for the county to determine what to do with the monument monument the with do to what determine to county the for while a took it Yet, 128 129 124 125 126 127 122 123 Horn, Horn, M K moves-whites-ferry. saying “[b]ecause it has significance locally, I want it to remain in Montgomery County—but not County—but Montgomery in remain to it want I locally,significance has it “[b]ecause saying to Silver Spring Park SpringSilver to unclear, but Leggett explains that it was based on “consultation with community members and advocates” preservation historic local 2017, 5:20 PM), https://patch.com/maryland/rockville/controversial-confederate-soldier-statue- ednref14. ednref14. bethesda-beat/news/public-response-shows-strong-objections-to-moving-confederate-statue-to- silver-spring-park/ (providing summary of public of this relocation statue). comments on initially proposed sites for beat/news/city-of-rockville-rejects-countys-request-to-take-controversial-confederate-statue/. the idea that it should be displayed on any public property. public any on displayed be it should that the idea Leggett saw three potential ways to deal with the monument: destroy it, move it to to it it, destroy move with to the monument: deal ways potential saw Leggett three it. recontextualize to try and place in leave or museum, a that conclude to him led experts preservation historic and politicians, members, nity County. Montgomery within stay but relocated be should monument the on county-owned land.”). Cameron Luttrell, Cameron

Statue beat/news/montgomery-county-presents-five-options-for-relocation-of-confederate-statue; also to to 25,000 pounds. Unquestionably it wa 2017), of-historic-ferry/2017/02/28/1de4fc08-fdf4-11e6-8f41-ea6ed597e4ca_story.html. Statue 2021] 2021] MONUMENTS CONFEDERATE PRIVATE 275 LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM cluded proposals for several public parks. clean or repair the monument and pedestal. and monument the repair or clean home for the 18-foot tall statue 11,000-pound originally erected by the UDC and 21, 21, 2017), https://activisthistory.com/2017/08/21/no-country-for-johnny-reb-or-bobby-lee/#_ after getting this approval. In response to vandalism in July 2016, the county placed placed county the 2016, July in vandalism to response In approval. this getting after a large wooden box around it. and all of the pedestal and inscription, but Johnny Reb’s face remained visible. the United Confederate Veterans in Montgomery County. C Y 43059-lcb_25-1 Sheet No. 146 Side A 03/17/2021 10:17:28 A 03/17/2021 146 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 146 Side B 03/17/2021 10:17:28 , M K C Y https:// https://

., IST H White’s Ferry Ferry White’s The ferry cross- Thenearly $100,000 OUDOUN , L Duringthe Civil War, Con-

note 85. 85. note Frustration led one councilmember visited Feb. 3, 2021) (noting this history on on history this (noting 2021) 3, Feb. visited supra The actual terms of the transfer are a bit bit a are transfer the of terms actual The Controversial Confederate Soldier Statue Listed On

note 125. 125. note Whites Ferry Still A Vital Virginia-Maryland Connector After 2 Centuries note 122. note 127; Metcalf, 2017, 2017, Metcalf, 127; note note 127. 127. note supra (Feb. 24, 2017, 5:12 PM), https://patch.com/maryland/rockville/controversial- PM), 5:12 2017, 24, (Feb. supra supra supra supra (Mar. 24, 2020), https://loudounnow.com/2020/03/24/whites-ferry-still-a- note 125. He said he put up the listing to see if there was a market for the statue, statue, the for market a was there if see to listing the up put he said He 125. note OW supra N ATCH

, P , Rotenstein, Id. Luttrell, A short video clip interviewing landowner R. Edwin Brown (father of the current Luttrell, Patrick Szabo, White’s Ferry — The Last Working Ferry on the Potomac Turque, Turque, Councilmember Tom Hucker acknowledged in the listing that he did not have The county relocated the monument on July 22, 2017. 22, July on monument the relocated county The In March 2017, Leggett announced that the county had reached an agreement agreement an reached had county the that announced Leggett 2017, March In 135 136 137 138 132 133 134 130 131 OUDOUN L the historical state marker associated withsite). the www.loudounhistory.org/history/whites-ferry/ (last www.loudounhistory.org/history/whites-ferry/ conveys travelers across the Potomac from Virginia. from Potomac the across travelers conveys boat ferry the 1871; in White V. Elijah veteran Confederate a by purchased was ing was long named after White’s former commander, Confederate General Jubal landowner) on the day of the monument’s arrival in White’s Ferry is a bit hard to decipher. Brown Brown decipher. to hard bit a is Ferry White’s in arrival monument’s the of day the on landowner) whites-ferry/. asserting asserting that private parties who cared about the monument should be the ones to foot the bill for removal and upkeep. Cameron Luttrell, Craigslist confederate-soldier-statue-listed-craigslist (quoting the craigslist ad as saying: “This posting is to but owner the not am I display. private for item historicalpurchasing this in interest market assess I am in contact with the owners. statue.”). Serious inquiries only. Buyer is responsible for relocating vital-virginia-maryland-connector-after-2-centuries/. permission to sell the statue Rotenstein, and recommended that interested parties contact the county. 276 276 a nearby historic house museum collapsed. REVIEW LAW CLARK & LEWIS point. this from Maryland into crossed frequently troops federate 25.1 [Vol. LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM

to post the monument for sale on Craigslist. on for sale monument the post to to relocate the monument to a nearby privately run ferry crossing. ferry run privately a nearby to monument the relocate to relocation was paid for by the county. Early. clearly states clearly that states his land when he was for someone volunteered looking a to volunteer host the monument, but he also seems to be referencing an organization other than the county as having asked him (“Kentuckyians”?). Video: (Montgomery ConfederateCounty 2017), https://www.mymcmedia.org/confederate-statue-at-new-home-in- Statue at New Home in White’s Ferry hard to discover. It is also not clear whether the monument was simply conveyed to to conveyed simply was monument the whether clear not also is It discover. to hard were there whether or land his on monument the place to volunteered who citizen a other organizations like the SCV involved, or what restrictions (if any) the county gift. on the imposed 43059-lcb_25-1 Sheet No. 146 Side B 03/17/2021 10:17:28 B 03/17/2021 146 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 147 Side A 03/17/2021 10:17:28

IDEBAR (July 6, 6, (July S

. To those those To IST EDIA M

Although not , H MC The Brownfam- Y M

One member of the the of member One , private property argument. The family has also re- also has family The The Brown family replaced it it replaced family Brown The (Aug. 16, 2017), https://www. county effectively lost control of the the of control lost effectively county ACEBOOK could care less about the As historian David Rotenstein remarked, “[b]efore the the “[b]efore remarked, Rotenstein David historian As The The Hidden Costs of Relocating Confederate Statues note 125 (stating “[t]he symbolic connotations attached to White’s White’s to attached connotations symbolic “[t]he (stating 125 note note 125. 125. note A Confederate Statue is Toppled in Rural Maryland, Then Quietly Stored White’s White’s Ferry Confederate Statue Now in Storage supra supra (July 4, 2020, 1:40 PM), https://www.washingtonpost.com/local/whites- PM), 1:40 2020, 4, (July OST P

.

ASH David David Rotenstein, Rotenstein, Rebecca Tan, Id. Isabel Cleary, Id. Joseph Hawkins to Tom Hucker, F Rotenstein, On June 16, 2020, the statue was vandalized and toppled. and vandalized was statue the 2020, 16, June On The relocation of the monument elicited criticism. On Facebook and else- , W 141 142 143 144 145 146 139 140 M K on public land, the land by the ferry crossing is very much a public space. In con- the operator, ferry the to monument the veying agree- transfer a in addressed somehow unless is, That messaging. its and monument was placed, monument ment, power the the county to decide no longer where had contextualization. any be would there whether and displayed, was it how ily, ily, current owners of the ferry, moved the statue into private storage but the base with the language honoring the thin grey line remains. Brown Brown family stated that he wants nothing more to do with the attention it has 2020), https://www.mymcmedia.org/whites-ferry-confederate-statue-now-in-storage/. https://www.mymcmedia.org/whites-ferry-confederate-statue-now-in-storage/. 2020), facebook.com/tom.hucker.3/posts/10155622153279731?comment_id=10155623085149731& comment_tracking=%7B%22tn%22%3A%22R6%22%7D (“And here is the really sad (maybe visitors Ferry, White’s via MoCo to Virginia from coming when like sounds It move. stupid) even will be able to see our statue. So, I’m crossing confederate the statue. How crazy is that? And I Potomac and MoCo welcomes me with a I simply understand not whydo we couldn’t just melt statue down.”). the transaction with White’s Ferry, Leggett didn’t consider the implications of transfer- of implications the consider didn’t Leggett Ferry, White’s with transaction ring an artifact freighted with such powerful symbolism mes- very to it—its to attached narratives anthe but placed was it where entity only not control that would sage.” with a sign that simply reads: “Historic White’s Ferry.” (Aug. (Aug. 21, confederate-statues/. 2017), https://blog.historian4hire.net/2017/08/21/hidden-costs-of-relocating- yland yland from Virginia.” opposed opposed to this new site, the statue went from a place where few people it noticed Mar- enter and ferry the leave they as see passengers things first the of “one being to Away 2021] 2021] MONUMENTS CONFEDERATE PRIVATE 277 LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM

moved the sign on the actual ferry that read “Gen. Jubal A. Early,” which, as noted, noted, as which, Early,” A. Jubal “Gen. read that ferry actual the on sign the moved had been the name of the ferry boat for decades. ferry-confederate-statue/2020/07/04/e717b18e-bb3c-11ea-bdaf-a129f921026f_story.html. where, community members expressed dismay that people would now be greeted County. Montgomery in river the crossing when monument the by Ferry Ferry weren’t lost on Montgomery County residents with a better grasp of history than some of leaders). the county’s C Y 43059-lcb_25-1 Sheet No. 147 Side A 03/17/2021 10:17:28 A 03/17/2021 147 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 147 Side B 03/17/2021 10:17:28

M K 5 ., C Y IMES OX OX NST I T

As of of As , F (Sept. 14, 14, (Sept. N.Y.

, This example Robert Robert E. Lee and EUTERS MITHSONIAN , R The Dallas South- Dallas The Alexander Phimister , S note 116 (“Two local historians historians local (“Two 116 note The ceremony unveiling the ariall&source=~!siartinventories& supra Denbo, Denbo, unclear, but for now it remains in private private in remains it now for but unclear, See how how the to an provided statue discuss opportunity Montgomery County councilmember Will Ja- Will councilmember County Montgomery , https://humanrightsdallasmaps.com/items/show/7 (last

ALLAS D

White’s White’s Ferry in Montgomery County Removes Confederate Statue note 150. 150. note Dallas Removes Robert E. Lee’s Statue from City Park Robert E. Lee Statue’s Removal in Dallas Delayed by Federal Court Federal by Delayed Dallas in Removal Statue’s Lee E. Robert note 143. note UMANRIGHTS supra supra , H Rex Curry, General Robert E. Lee and Confederate Soldier, (sculpture) Stack, Liam Curry, Tan, Tan, Tom Fitzgerald, race, on talks give to statue the of presence the used they that noted historians local Some Montgomery Montgomery County’s example demonstrates that local governments need to In a September 2017 emergency meeting, the Dallas City Council voted 13-1 13-1 voted Council City Dallas the meeting, 2017 emergency In a September 3. Robert E. Lee Statue in Dallas, Texas Texas Dallas, in Statue E. Lee 3. Robert In Lee Park in Dallas, a fourteen-foot statue depicted Confederate General 150 151 152 153 147 148 149 who lead tours of historic Rockville spoke who of spoke Rockville lead of tours historic the history of race in America.”). removes-confederate-statue. removes-confederate-statue. Proctor, a New York designed the sculptor, statue. https://siris-artinventories.si.edu/ipac20/ipac.jsp?&profile= 2017), 6,https://www.nytimes.com/2017/09/06/us/robert-e-lee-confederate-dallas.html. (Sept. to the county with only tangential relationship with the Civil War. Civil the with relationship tangential only with county the to 1936. in place took monument this writing, the future of the monument is is monument the of future the writing, this view. public from removed and storage contextualization, than better is control cannot they that removal a whether consider options weigh fully to chance a had have they until monument the storing simply or have may statue boxed the even Frankly, relocation. the of impacts the consider and been a better option (in terms of ongoing messaging to the community that white gateway in a prominent relocation than be not will attitudes tolerated) supremacist

slavery, Jim Crow, and the Civil Rights Era. uri=full=3100001~!23912~!0#focus uri=full=3100001~!23912~!0#focus (last visited Feb. 3, 2021); Anita E. Kelly, Young Soldier Feb. visited 3,2021). DC DC (July 7, 2020), https://www.fox5dc.com/news/whites-ferry-in-montgomery-county- 278 278 brought to their ferry business. REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM also shows the pace and change of public opinion related to the relocation of public public of relocation the to related opinion public of change and pace the shows also legacies. monumental controversial these address to how and monuments Robert E. Lee on ridinghorseback with an unnamed soldier. wando says White’s Ferry did the right thing by taking the statue down. ern Memorial Association commissioned the statue in 1932. in statue the commissioned Association Memorial ern in in favor of the monument’s removal in response to the events in Charlottesville, 2017, 2017, 7:38 PM), https://www.reuters.com/article/us-dallas-statue/dallas-removes-robert-e-lees- statue-from-city-park-idUSKCN1BQ07Z. 43059-lcb_25-1 Sheet No. 147 Side B 03/17/2021 10:17:28 B 03/17/2021 147 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 148 Side A 03/17/2021 10:17:28

. AG ODAY M (Sept. (Sept. T

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, USA MITHSONIAN MITHSONIAN , N.Y. , S , The resolution detailed A Dallas resident and the SCV SCV the and resident Dallas A The complaint called the vote “a to- “a vote the called complaint The The group alleged that the city coun- (July 2, 2019, 6:20 PM), https://www.

EWS Judge Fitzwaterdismissed the lawsuitat a N

ORNING M Robert Robert E. Lee Statue in Dallas to Be Removed After Judge Tosses (Sept. 17, 2017, 6:59 PM), https://www.keranews.org/post/ EWS This allowed for the statue to be removed, be to statue the for allowed This Appeals Court Rules Dallas Cannot Remove Confederate War Memorial Confederate Remove Cannot Dallas Rules Court Appeals ALLAS e-removed-after-judge-tosses-restraining-order. e-removed-after-judge-tosses-restraining-order. N Dallas Can Remove Robert E. Lee Statue, Judge Rules , D Dallas Gets Go-Ahead to Remove Robert E. Lee Statue ERA ERA note 152. note 158. 150. note , K supra supra supra supra supra The resolution authorized the city manager to use public funds to re- to funds public use to manager city the authorized resolution The

Haag, Confederate Monuments: Robert E. Lee Statue Removed from Dallas Park Curry, Robert Wilonsky, 05- No. Rawlings, Mike v. Park Lee to Lee Return 21, at Merits the on Brief Appellant’s Stack, Stack, Id. Id. Katz, Bridget Matthew Haag, Christopher Connelly, In April 2018, a group called Return to Lee Park, founded by former Dallas Shortly after the city council’s resolution passed, Judge Sidney Fitzwater of the the of Fitzwater Sidney Judge passed, resolution council’s city the after Shortly 160 161 162 163 164 154 155 156 157 158 159 M K robert-e-lee-statue-180964825/. robert-e-lee-statue-180964825/. confederate-monument-robert-e-lee-statue-comes-down-dallas/669275001/. (Sept. 8, 2017), https://www.smithsonianmag.com/smart-news/dallas-gets-go-ahead-remove- robert-e-lee-statue-dallas-b move all Confederate monuments located on public land. public on located monuments Confederate all move brought the lawsuit claiming that the city council violated their First Amendment rights by voting to remove the monument. cil violated the Texas Open Meetings Act, which states that governmental bodies session. closed a for reason authorized an is there unless meetings open hold must (Sept. 15, 2017, 8:39 AM), https://www.usatoday.com/story/news/nation-now/2017/09/15/ dallasnews.com/news/politics/2019/07/02/appeals-court-rules-dallas-can-t-remove-confederate- hearing hearing the next day. workers did that same month. same that did workers force to try to court state in lawsuit a filed Johnson, Warren candidate Council City park. city the to statue the return to city the The city council asserted the claim was moot because there was proper notice for ‘Until ‘Until Further Notice’ 7, 2017), https://www.nytimes.com/2017/09/07/us/lee-monument-dallas.html. https://www.nytimes.com/2017/09/07/us/lee-monument-dallas.html. 2017), 7, Restraining Order 2021] 2021] Virginia. MONUMENTS CONFEDERATE PRIVATE 279 LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM

talitarian talitarian move to determine authorized forms of political communication and to speech.” political unauthorized punish that the city council in conjunction with a city task force on Confederate monu- with tasked was Rawlings, Michael Mayor Dallas by 2017 August in created ments, statue. the with do to what out figuring United States District Court for the Northern District of Texas granted a temporary temporary a granted Texas of District Northern the for Court District States United restraining order halting the statue’s removal. war-memorial-until-further-notice/. war-memorial-until-further-notice/. 19-00456-CV (Tex. App. Aug. 12, 2019). 19-00456-CV Aug. (Tex. 12, App. C Y 43059-lcb_25-1 Sheet No. 148 Side A 03/17/2021 10:17:28 A 03/17/2021 148 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 148 Side B 03/17/2021 10:17:28

, M K C Y The Here’s BSERVER O ALLAS , (June 13, 201920, , D , BSERVER O If the statue is sold again, any ALLAS

Dallas’ Removed Robert E. Lee Sculpture , D (June 6, 2019, 4:00 AM), https://www. The city then posted it to an online auction in in auction online an to it posted then city The BSERVER The purchaser of record was Ron Holmes, “a local local “a Holmes, Ron was record of purchaser The O note 164, 1. at , NBC DRW (June 27, 2019, 11:58 AM), https:// llasobserver.com/news/dallas-robert-e-lee-buyer-identity-11686172 llasobserver.com/news/dallas-robert-e-lee-buyer-identity-11686172 l/dallas-removed-robert-e-lee-sculpture-transferred-to-new-owner/ l/dallas-removed-robert-e-lee-sculpture-transferred-to-new-owner/ ALLAS supra supra Dallas Sells Its Robert E. Lee Statue, Enraging at Least 1 Virginia Robert E Lee Statue Removedfrom Dallas Park Sells forMore than $1.4m DallasCity Council Agrees RobertSell Statue to E.Lee note 84. 84. note , D supra Additionally by the time of the lawsuit, the Lee statue had already already had statue Lee the lawsuit, the of time the by Additionally The Dallas City Council approved the sale of the statue with two (June 23, 2019,6:02 PM), https://www.independent.co.uk/news/world/americas/ Return Lee Lee to Park,05-19-00774-CV 2019). Oct.10,App. No. (Tex. As a result, the state court dismissed the case with prejudice in April April in prejudice with case the dismissed court state the result, a As at 7. 7. at

That same month, the group appealed to the Fifth Circuit who issued a Sarah Mervosh, Mervosh, Sarah Appellees’ Brief 12,at Return Lee to Lee Park v. Mike Rawlings, No. 05-19-00456-CV Id. Appellant’s Brief, re In Mervosh, Id. Frank Heinz, Ken Kalthoff, & Kendall Jarboe, Stephen Young, The task force originally recommended that the statue be donated to a museum museum a to donated be statue the that recommended originally force task The 173 165 166 167 168 169 170 171 172 NDEPENDENT dealer); Stephen Young, Young, Stephen dealer); (profiling owner and some of the other bidders–including a cattle company and an automotive (Tex. App. Sept. 11, 2019). 2019). 11, Sept. App. (Tex. robert-e-lee-statue-sold-auction-dallas-confederate-texas-a8971206.html. robert-e-lee-statue-sold-auction-dallas-confederate-texas-a8971206.html. statue ended up selling for $1.435 million (which exceeded the city’s nearly million million nearly city’s the exceeded (which million $1.435 for selling up ended statue pre-auction). valuation dollar 4:00 4:00 AM), https://www.da (May 23, 2019, 4:00 AM), robert-e-lee-statue-11670716. https://www.dallasobserver.com/news/dallas-finally-ready-to-sell- proved appropriate or proved appropriate available. 2019. or where site it full in could be but context, educational no options displayed local Confederate Apologist I Transferred Transferred to www.nbcdfw.com/news/loca New Owner 214562/. While Montgomery County felt it important Dallas county, specifically nearby. did wantanywhere not sculpture thatthe Lee Johnny Reb remain within the 280 280 the meeting. been relocated, there had been a subsequent publicly noticed meeting where the mootness of the Texas Open Meetings Act claim was and debated, there had been another publicly noticed meeting where payment for the relocation work was au- REVIEW LAW CLARK & LEWIS thorized. 25.1 [Vol. LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM

June 2019. real estate lawyer bidding on behalf of his firm.” temporary temporary restraining order, but the statue had already been sold as surplus prop- moot. as case the dismissed court the and erty, dallasobserver.com/news/dallas-sells-lee-statue-for-14-million-11680860; Stephen Young, restrictions: that it be sold for more than the cost to remove it from City Park (pre- Park City from it remove to cost the than more for sold be it that restrictions: viously known as Lee Park), which was at estimated and roughly $450,000, that it area. metropolitan Worth Dallas-Fort the in displayed publicly be to not was Who Who Paid $1.45 Million for Dallas’ Ode to Robert E. Lee 43059-lcb_25-1 Sheet No. 148 Side B 03/17/2021 10:17:28 B 03/17/2021 148 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 149 Side A 03/17/2021 10:17:28

The The URNER ECORD ISTORIC ISTORIC T -R

H ,

EWS

ORM N F . (Oct. 22, 2017), AILY AILY EC EGISTER OF , https://stonesentinels. , R -R , D EWS Ashby commanded cav- commanded Ashby N EGISTRATION oric Resources (June 15, 2017), ENTINELS R ATIONAL S AILY N

note 173. clearIt not is how binding , https://www.shenandoahatwar.org/ ., , D AR TONE ERV W supra supra , S , S

ONUMENT ONUMENT M ARK foundation-seeks-ashby-easement/article_ foundation-seeks-ashby-easement/article_

P nument/ (last visited Feb.3,2021). See id. L ’ Mervosh, SHBY The monument was placed on the Virginia Virginia the on placed was monument The AT A N

: see also also see HENANDOAH HENANDOAH AT URNER , S s, s, Virginia Department of Hist T NTERIOR I Dallas’sJack’sHasLandedBlackStatue at E.Lee Crossing Robert Near The resort is owned by oil and gas billionaire Kelcy War- Kelcy billionaire gas and oil by owned is resort The note171; ORM note 9. 9. note 9. note F Foundation Foundation Seeks Ashby Easement City Cannot Remove Turner Ashby Monument (2017), https://www.dhr.virginia.gov/wp-content/uploads/2018/04/115- supra supra supra supra T OF THE ’ . (Sept. 20, 2019, 11:21 AM), https://www.dmagazine.com/frontburner/2019/ https://www.dmagazine.com/frontburner/2019/ AM), 11:21 2019, 20, (Sept. . Turner Ashby Turner , The stone monument is around eight feet tall and composed of a a of composed and tall feet eight around is monument stone The EP AG D

M

ONUMENT EGISTRATION EGISTRATION , D , See, e.g. Seegenerally General Turner Ashby Monument U.S. Ian Munro, Fernandez, Shinneman, Shawn Fernandez, Nolan Stout, Heinz et al. R M W. Scott Beasley, the president of WSB Resorts and Clubs, said that “it was was “it that said Clubs, and Resorts WSB of president the Beasley, Scott W. In September 2019, Black Jack’s Crossing Golf Course in Lajitas, Texas placed placed Texas Lajitas, in Course Golf Crossing Jack’s Black 2019, September In 4. Turner Ashby Monument in Harrisonburg, Virginia Virginia Harrisonburg, in Monument Ashby 4. Turner The Turner Ashby Monument in Harrisonburg, Virginia sits on 1.7 acres of 179 180 181 182 175 176 177 178 174 M K SHBY LACES monument/article_bb01c276-849e-5c79-9aed-d6b0f8d28f2f.html. the statue on display. com/less-known/harrisonburg/turner-ashby-mo ren. history/turner-ashby/ 3,2021). Feb. (last visited (June 12, 2020), https://www.dnronline.com/news/local/city-cannot-remove-turner-ashby- https://www.dnronline.com/news/harrisonburg/ Board Review State Virginia from Minutes Draft a903093c-b79f-11e7-a8a3-ef33783e142f.html; and Board of Historic Resource https://townhall.virginia.gov/L/GetFile.cfm?File=meeting%5C60%5C26112%5CMinutes_DH Department Resources].[hereinafter Virginia of Historic R_26112_v1.pdf Campaign. alry alry under and was integral to Jackson’s success in the Valley statue to someone who intends to display it in the DFW metropolitan area, and it is also unclear enforced. legally be to is requirement this how this obligation is. Some news reports indicate that the successful bidder simply cannot convey the the convey cannot simply bidder successful the that indicate reports news Some is. obligation this Located Located on the east marker’s side, to the polished inscription Ashby Turner states that he was killed “on this spot.” Con- of battle in death 1862 the commemorating as monument the describes listing rough-hewn limestone base with a granite shaft that tapers into a pyramidal cap. pyramidal a into tapers that shaft a granite with base limestone rough-hewn donated to the resort and we could not be a more proud recipient.” proud a more be not could we and the resort to donated P A 5063_Turner_-Ashby_-Monument_2017_NRHP_FINAL.pdf. Terlingua 2021] 2021] restrictions. location the with comply apparently must purchaser subsequent MONUMENTS CONFEDERATE PRIVATE 281 LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM

Landmarks Landmarks Register and the National Register of Historic Places in 2017. 09/dallas-robert-e-lee-statue-has-landed-at-black-jacks-crossing-in-terlingua/. private land—the spot where Ashby was killed in 1862. killed was Ashby where spot land—the private C Y 43059-lcb_25-1 Sheet No. 149 Side A 03/17/2021 10:17:28 A 03/17/2021 149 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 149 Side B 03/17/2021 10:17:28

M K C Y The The

ATTLEFIELDS ATTLEFIELDS

B onument.html? onument.html? The Founda- The -M ALLEY ALLEY V shby -A urner The agency’s board, how- board, agency’s The -T HENANDOAH HENANDOAH note 178. 178. note 178. note 178. note , S C contact the Shenandoah Valley

supra supra supra not not much discussion in the record. ededication-of This small acreage and memorial are sur- are memorial and acreage small This and its proximity to the university masks the the masks university the to proximity its and note 181. note 181. note storic designation, but the state review board .com/R Although the monument sits on private prop- private on sits monument the Although supra supra , ,

NTERIOR NTERIOR I I note 178. 178. note T OF THE T OF THE ’ ’ myemail.constantcontact EP EP supra :// D D

—presumably —presumably based on concerns relating to the with state’s involvement

Virginia Department of Historic Resources, Resources, Historic of Department Virginia U.S. Id. Virginia Department Resources, of Historic Id. Stout, Virginia Department Resources, of Historic A Rededication of the Turner Ashby Monument Id. U.S. ., https The state then recommended that the UD As the Ashby monument showcases, conservation easements are As the another easements layer conservation Ashby showcases, monument In the mid-2010s, the UDC offered to convey a conservation easement to the to aeasement In offered the to UDC convey the the conservation mid-2010s, 185 186 187 188 189 190 191 192 183 184 OUND site and memorial are owned and maintained by the Turner Ashby Chapter of the Virginia. UDC in Harrisonburg, soid=1102348702549&aid=H9fE8xkFIwY (last visited Feb. (last visited 3,2021).soid=1102348702549&aid=H9fE8xkFIwY erty, the property is open to the public public the to open is property the erty, the land. of status private The The UDC had strategically sought to have the Virginia Department of Historic Resources hold the conservation easement to provide another layer of difficult more it protection make to protection, this obtain to seeking those of view the in (and for eminent domain to be exercised against the site).

Battlefields Battlefields Foundation, a nonprofit organization who had been planning to co- hold this conservation easement. The Shenandoah Valley Battlefields Foundation 2017. in of easement October the donation conservation accepted F 282 282 associa- its for significant locally is it that notes and Ashby Turner General federate tion with the Lost Cause movement. REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM tion and the Turner Ashby Chapter of the UDC commemorated creating the creating con- tionof and the UDC Ashby the Chapter Turner commemorated monument. for the ceremony a rededication holding by easement servation a Confederate a monument, although Confederate there is and legacy structure’s the to relating concerns its on based request the declined ever, primar- was that request conservation-easement-holding first the was this that noted rounded rounded on three sides by James Madison University, a public university. of property interest that can complicate removal. A conservation easement is a legal legal a is easement conservation A removal. complicate can that interest property of declined to accept with a three-to-three deadlocked vote (majority approval was re- approval (majority vote deadlocked a three-to-three with to accept declined quired) state to protect this resource. The state easement mended acceptance in acceptance light of committee its hi recom- ily driven by the desire to protect a Confederate monument, rather than other site- rather than other monument, a Confederate protect to desire by the driven ily sites). larger to as contributing or space as open (such reasons related 43059-lcb_25-1 Sheet No. 149 Side B 03/17/2021 10:17:28 B 03/17/2021 149 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 150 Side A 03/17/2021 10:17:28 , 74 107, 107, Y ’ OC S

& ONSERVATION

. ROP P

, 25 C lowest) but still play a a play still but lowest) , 1 J.L.

The Effectiveness of Buying Easements Easements Buying of Effectiveness The To facilitate these transactions, transactions, these facilitate To 182, 182 (2008) (noting the levels of . 29 (2011). An Introduction to Conservation Easements in in Easements Conservation to Introduction An s of a study indicating the motivations for ETTERS ROBS L P

. 399, 441 (2016). financial motivations scoring

Incentives for Conservation Easements: The Charitable L.J. L The property interest held bygovernment, at what- ONTEMP ’ C . 293,298 (2004).

The holders of the conservation easements must be be must easements conservation the of holders The The federal tax codealso subsidizes some conservation & NVT

ONSERVATION E ITIG

. L

A &

, 1 C , 74 L. 74 , Exacted Conservation Easements: The Hard Case of Endangered Species L. Reevaluating the Reevaluating Role of Acquisition-Based Strategies in Greater the Historic . 1, 2 agencies government (2011) as (discussing holders and noting that L , 34 V , 34 ’ Conservation Easement Reform: As Maine Goes Should the Nation Follow? ROBS NVT P , Daniel J. Halperin,

, Paul R. Armsworth & James N. Sanchirico, Sanchirico, N. James & Armsworth R. Paul , . A property owner is unlikely, in most instances, to divest this degree of of degree this divest to in instances, most unlikely, is owner property A Movement

, 19 J. E J. 19 , 827, 833 (2011) (profiling the result the (profiling (2011) 833 827, See, e.g.See, See, e.g. Jeff Pidot, Jessica Owley, FedericoMcLaughlin,CheeverA.Nancy & Jess R. Phelps, James R. Farmer, Doug Knapp, Vicky J. Meretsky, Charles Chancellor, & Burnell C. Motivations Motivations Influencing the Adoption of Conservation Easements ONTEMP Conservation easements insert an additional role for government or at least blur blur least at or government for role additional an insert easements Conservation Second, in many instances, governmental entities as serve the Second, of actual entities holder in many governmental instances, C

197 198 199 193 194 195 196 & M K

IOLOGY L. conservation easement conveyances (with facilitating role). easement donations—allowing a property owner to claim, for a qualified donation, donation, qualified a for claim, to owner property a donations—allowing easement gifted. have they interest property the of the value governmental agencies (federal, state, and local) allocate substantial resources to ac- to resources substantial allocate local) and state, (federal, agencies governmental grant of conditions as or programs acquisition through easements conservation quire histor- a state if example, (for objectives program-related other achieve to financing conser- a require may they house, historic a restore to funds providing is agency ical vation easement to protect the house against demolition for a specified period to investment). their protect

as a Conservation Strategy Deduction or a Better Way Protection the United States: A Simple Concept and a Complicated Mosaic of Law 138 (2015). Preservation Fisher, B 2021] 2021] organi- (a nonprofit holder and an owner a easement property between agreement rights certain up gives owner property the whereby entity), governmental a or zation MONUMENTS CONFEDERATE PRIVATE holder easement the and monument) a (here, resources protected alter or modify to future the agrees owners this against of grantor terms and to enforce the restriction of the protected property. 283 LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM either nonprofit organizations or government entities. or government organizations either nonprofit the divide between public and private in a few material ways. First, conservation easements are acquired with some generally degree of funding public or public-ish funding. expenditure on these efforts). efforts). these on expenditure preferred a as regulation land-use and acquisition land public displaced have acquisitions easement technique). conservation land oversight oversight without some corresponding benefit. these conservation easements. conservation these C Y 43059-lcb_25-1 Sheet No. 150 Side A 03/17/2021 10:17:28 A 03/17/2021 150 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 150 Side B 03/17/2021 10:17:28

M K & 67

C Y (Oct. (Oct. 65, This This , WHSV UN , 74 L. S This role role This

. IOLOGY IOLOGY B . (Feb. 3, 2020), Philip Way, a a Philip Way, Land Trusts and and Trusts Land ALT EC storic preservation preservation storic -R , B The Ashby monu- Ashby The EWS N . 1237, 1239 (2009) (profiling (profiling (2009) 1239 1237, . ONSERVATION AILY EV R Unknown persons vandalized

, D , L. , 18 C , 18

. ISC st likely a state hi a state likely st accepted this obligation, to essentially essentially to obligation, this accepted Public Access to Information on Private Land Land Private on Information to Access Public , 2009 W 2009 , Conservation Easements and the Doctrine of Merger Baltimore Baltimore Lacked Authority to Take Down Confederate Statues, Confederate Monument in Harrisonburg Vandalized Turner Ashby Monument Targeted Again Targeted Ashby Monument Turner

. . 279, (discussing280 the role/responsibilities(2011) of holders). The vandals also left several notes written on posters on the monu- on the posters on written notes several also left vandals The , Ian Duncan, ROBS A.M. A.M. Merenlender, L. Huntsinger, G. Guthey, & S.K. Fairfax, P

. Amy Amy Wilson Morris & Adena R. Rissman, Autumn Childress, Id. Pete Delea, Nancy Nancy A. McLaughlin, See See, e.g. Our research did not locate many examples of Confederate monuments pro- In June 2019, the Ashby monument had eggs, raw meat, and other substances substances other and meat, raw eggs, had monument Ashby the 2019, June In 203 204 205 206 200 201 202 ONTEMP and State Says It Could—But Will Not—Order Them Restored 26, 2017), https://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-ci-confederate- can also place varying levels of government, mo government, of levels varying can place also a from monument a remove to seeking municipality local a with conflict in agency, space. public the issues regarding transparency regarding overthe protected issues lands). thrown at at thrown it. enforcement role requires the agency, if it has has it if agency, the requires role enforcement prevent the property owner from taking steps to modify or remove protected fea- tures of the landscape—which can include Confederate monuments. the monument again in February 2020 by dousing it in red paint. in red it dousing 2020 by inagain February themonument

ment quoting Ulysses S. Grant and Jefferson Davis. Jefferson and Grant S. Ulysses quoting ment C (2004). 284 284 ever to level, requires the entity public to its monitor fulfill the obligations conser- vation easement and to enforce its provisions in the event of a violation. REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM ment holders grappling with a complicated determination of whether to permit permit re- to of whether determination with grappling a ment complicated holders moval or enforce the terms of the easement against a property owner remove seeking the to monument. This may, however, be a function of one of the primary attrib- private the investment—that as aeasements public of critiques conservation utes of these conveyances often make finding data and, in turn, public oversight over the administration of the protected properties difficult. tected by preservation or conservation easements, and even fewer examples of ease- and even easements, orfewer examples tectedconservation by preservation (June (June 6, 2019, 6:32 PM), https://www.whsv.com/content/news/Confederate-monument-in- Trust and the City of Baltimore over the future of confederate monuments that the city removed removed city the that monuments confederate of future the over Baltimore of City the and Trust in contravention of a preservation easement heldby the MHT). https://www.dnronline.com/dnronline/turner-ashby-monument-targeted-again/article_2df006 monuments-letter-20171026-story.html (profiling the conflict between the Maryland Historical a property that essentially looks to be part of a public university’s grounds, showcases showcases and underlying ment, easement protecting withconservation ownership its layered grounds, university’s public a of part be to looks essentially that property a this complexity. Conservation:Tracking Conservation Easements Conservation Easements: Who is Conserving What for Whom? Harrisonburg-vandalized—510945221. 43059-lcb_25-1 Sheet No. 150 Side B 03/17/2021 10:17:28 B 03/17/2021 150 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 151 Side A 03/17/2021 10:17:28 , . EC -R (Apr. EWS HRON N , C , AILY , D

By virtue of its private ownership, the the ownership, private its of virtue By the SCV as the most prominent owner of of owner prominent most the as SCV the But today, it is the SCV who has been (quoting scholar Karen Cox as stating that “[i]n a Silent Sam Settlement Could Be Only the Beginning cacy, among other issues, is the UDC’s conveyance of

The plansfor thememorial were first announced As Confederate Statues Fall, The Group Behind Most of Them Most Stays The Behind Group Fall, Statues As Confederate City Cannot Remove Turner Ashby Monument 150 Years After Fall, Confederate Memories Linger in Texas in Linger Memories Confederate Fall, After Years 150 (Aug. 25, 2017, 3:06 PM), https://www.newsweek.com/united-daughters- , Ian Munro, , Max Kutner, , Kutner, Max

J. (Dec. 4, 2019, 8:13 PM), https://www.carolinajournal.com/news-article/silent-sam- PM), 8:13 2019, 4, (Dec. J. EWSWEEK A literal example of this transfer of primary leadership, although the groups still work Baddour, Dylan Id. See, e.g. See, e.g. During the Jim Crow era, the UDC funded and placed the majority of Con- In recent years, SCV chapters have actively sought to increase the number and and number the increase to sought actively have chapters SCV years, recent In The Texas The SCV on Texas monument recently a built pri- Chapter new Confederate 1. Confederate Memorial of the Wind in Orange, Texas Texas Orange, in Wind the of Memorial Confederate 1. , N 210 211 207 208 209 Lindsay Marchello & Rick Henderson, M K AROLINA monument/article_bb01c276-849e-5c79-9aed-d6b0f8d28f2f.html. has been one positive: more members.” (June 12, 2020), https://www.dnronline.com/news/local/city-cannot-remove-turner-ashby- fighting against public monument removal. monument public against fighting more aggressive by pushing for more monuments, erecting private monuments, and and monuments, private erecting monuments, more for pushing by aggressive more confederacy-statues-monuments-udc-653103 settlement-could-be-only-the-beginning. 9. 2015, 1:21 PM), https://www.chron.com/news/article/150-years-after-fall-Confederate- B. Heritage Groups as Landowners Landowners as Groups Heritage B. federate monuments in public spaces. together in some monument-related advo the Silent Sam monument and UNC-Chapel Hill to the SCV in the middle of that controversy. See C ab-d496-5e50-82f1-c8683194bcff.html (discussing this vandalism incident). Quiet 2021] 2021] there .. . frustrating are incidents the “While stated, chapter, SCV local the in leader MONUMENTS CONFEDERATE PRIVATE local community also lacks the clear legal ability to remove the monument, which area. the in many frustrated has 285 LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM

typical Southern town with a statue to the Confederacy . . . ‘I could almost guarantee you that the the that you guarantee almost could ‘I . . Confederacy . the to statue a with town Southern typical job’”). the had done that they somewhere, the monument UDC on would be prominence of Confederate monuments. While they have previously, and compar- and they previously, have monuments. While of Confederate prominence atively recently, facilitated some placements on public lands, the organization has demon- examples following the As lands. private on attention to focus begun more strate, sometimes the SCV owns the land itself. Sometimes the land is owned by members who allow the SCV to erect a monument. There are a number of other on is here focus our While permutations. private monuments, we acknowledge that other heritage groups and private indi- involved. been also have viduals vate land in Orange, Texas the called Memorial of Confederate the Wind; it is on to be and located designed and strategically was Boulevard Jr. King, Luther Martin highway. the from visible easily C Y 43059-lcb_25-1 Sheet No. 151 Side A 03/17/2021 10:17:28 A 03/17/2021 151 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 151 Side B 03/17/2021 10:17:28

M K C Y OUSTONIA According According Again, the Again, the , H

SCV argues that , Orange city officials sought sought officials city Orange , It consists of 13 columns rep- No residents, however, spoke in in spoke however, residents, No (Jan. 21, 2019, 5:41 PM), https:// OW

L.A. Times L.A. N EWS EWS ng, Jr. Blvd. and the racist legacy of the Con- N

, 12 deciding they could not legally withhold a permit. , the Beaumont chapter of the National Association for According to the to According Do We Need Another Confederate Monument in Texas? ProtestersStandTakeAgainsta Confederate Memorial OrangeHonorin in (June 19, 2015, 2:04 PM), https://www.bloomberg.com/news/ Texas Built a Confederate Memorial on a Street Named for Martin Luther on for Luther Memorial a Martin Street Named Texas Built a Confederate note 211. 211. note note 211. 211. note note 214. 214. note note 88. note 88. supra supra supra supra supra supra In a poll of its readers conducted by a local newspaper in February 2013, 2013, February in newspaper local a by conducted readers its of poll a In LOOMBERG The $50,000project was funded by donations, largelyfrom East Texans Parris Kane, Kane, Parris

, B Jarvie, Jarvie, See Baddour, Capps, Id. Jarvie, Id. Id. Gwendolyn Knapp, Baddour, Capps, Kriston Beaumont Enterprise Beaumont SCV needed a permit from the city to construct the monument. the construct city to the from permit a needed SCV Many Many Orange residents protested construction of the memorial because of its 216 217 218 219 220 221 222 212 213 214 215 articles/2015-06-19/texas-built-a-confederate-memorial-on-a-street-named-for-martin-luther- king-jr. Note that residents felt comfortable supporting the memorial in an anonymous pollmemorial but the of favor in speak to enough) invested not simply perhaps (or enough comfortable not openly at a public hearing. the monument is important for educating people about the Civil War and explain- and War Civil the about people educating for important is the monument cause. its not and war of the part a small only was slavery that ing favor of the monument during an Orange City Council meeting about the the monu- about meeting Council City an Orange during of monument the favor it. oppose to up turned residents many while 2013, February in ment who trace their ancestry to veterans. Confederate (Feb. 28, 2018, confederate-monument-orange-texas. 12:00 AM), https://www.houstoniamag.com/news-and-city-life/2018/02/ NAACP and other groups opposed the permit application, but the city saw no legal legal no saw city the but application, permit the opposed groups other and NAACP justificationfordenial. Orange City Council also passed an ordinance to “limit flagpoles to thirty-five-feet to thirty-five-feet flagpoles anto “limit passed also ordinance Council Orange City of Martin Luther www.12newsnow.com/article/news/protesters-take-a-stand-against-confederate-memorial-in- King Jr. Day memories-linger-6187647.php. memories-linger-6187647.php. King Jr. to limit the memorial’s impact by regulating the size of the flags and placing re- strictions on parking after 286 286 2013. in REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM

close close to proximity Martin Luther Ki federacy. 77% of respondents supported the memorial. to the orange-in-honor-of-martin-luther-king-jr-day/502-85890743-5c1f-44b2-974d-4e434aac08fb. resenting the 13 states of the Confederacy and includes the Confederate flag Army. and Confederate the to belonging Texas the of flags the the Advancement of Colored People (NAACP) also opposed the memorial, as did Orange. and Beaumont of residents some 43059-lcb_25-1 Sheet No. 151 Side B 03/17/2021 10:17:28 B 03/17/2021 151 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 152 Side A 03/17/2021 10:17:28 In (June This This EADER L (Feb. 28, 2020), when silence is

RANGE Repurpose raised raised Repurpose , O ghes, Research Assistant,

EMORIAL M Despite efforts and appeals by by appeals and efforts Despite “A time comes Furthermore, the city’s regula- city’s the Furthermore, It was that requirement that has has that requirement that was It and tall flagpoles on the property,” property,” the on flagpoles tall and EPURPOSE EPURPOSE The billboard detailed a picture of of picture a detailed billboard The , R While SCV members suggest the site open the is suggest members SCV While As of summer 2020, there was still no parking under, Repurpose, to Sean Hu , https://repurposememorial.com/about/ , (lasthttps://repurposememorial.com/about/ Feb. visited note 226. supra supra , EMORIAL The city will not allow the SCV to have public gatherings gatherings public have to SCV the allow not will city The M Letter Letter to the Editor Re: Memorial Confederate note 212. EMORIAL note 212. MLK Billboard Appears Over Confederate Memorial Throughout Black History History Black Throughout Memorial Confederate Over Appears Billboard MLK M supra supra EPURPOSE In 2017, a Texas couple founded the Repurpose Movement to ad- to Movement Repurpose the founded couple Texas a 2017, In supra supra R

, The billboard appeared a few days before MLK Day in January 2020 2020 January in Day MLK before days few a appeared billboard The Knapp,

EPURPOSE See Email from Jeremy Parzen, Fo Knapp, R Id. Bianchi, Do Id. Id. Id. John Cash Smith, Id. About Id. There have been ongoing protests against the memorial. About 30% of the 229 230 231 232 233 234 235 223 224 225 226 227 228 M K Univ. of Miami School of Miami (Julyof Law withfile 6,2020) Univ. (on authors). Martin Luther King, Jr. with a quote that states, betrayal.” slowedthe completion ofthe site. population in Orange, Texas is African-American. is Texas Orange, in population and remained through the entirety of Black History Month (February 2020). (February Month History of Black entirety the through and remained lot because the SCV does not own sufficient land around the monument to meet its its meet to monument the around land sufficient own not does SCV the because lot requirements. parking enough money in January 2020 to purchase two months of advertising space on a billboard that appears over the monument.

Month. Month. Thanks to Everyone Who Made it https://repurposememorial.com/2020/02/28/southern-poverty-law/. Possible 17, 2020, 12:01 AM), https://orangeleader.com/2020/06/17/letter-to-the-editor-re-confederate- memorial/. 3, 2021). 2021] 2021] tall and to ban any flags larger than four by six feet” in the community. MONUMENTS CONFEDERATE PRIVATE 287 lot. a parking have they there until LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM vocate vocate for the repurposing of the Confederate Memorial. ordinance “prevent[ed] the erection of huge flags flags huge of erection the “prevent[ed] ordinance which would have been seen from Interstate 10. June 2020, the couple started another campaign to secure space on the billboard for for billboard the on space secure to campaign another started couple the 2020, June tions on the property required a concrete parking lot with a certain number of park- of number certain a with lot parking concrete a required property the on tions ing places including parking for the disabled. local politicians, businesses, and religious leaders (along with the city’s offer to pur- to offer city’s the with (along leaders religious and businesses, politicians, local chase the land), the SCV has refused to consider any alternatives to erecting the to the public, “no trespassing” signsposted. have also been trespassing” “no public, to the monument. C Y 43059-lcb_25-1 Sheet No. 152 Side A 03/17/2021 10:17:28 A 03/17/2021 152 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 152 Side B 03/17/2021 10:17:28

, , . M K C Y The The HRON C (June 8, 8, (June ATABASE E D M and hosts an an hosts and UND UGUSTA , https://www. F ARKER O , A M , G

. IVISION D IST events of Charlottesville “[i]f H

“Inaddition to battle reen- , OURISM T

The seven-foot-tall granite memorial Battle Battle of Aiken Visitors Speak on Confederate this this twenty-sixth annual reenactment drew an S.C.: The SCV owns the land, the owns SCV The Battle Battle of Aiken (Feb. 26, 2020), https://www.aikenstandard. https://www.aikenstandard. 2020), 26, (Feb.

See IKEN IKEN Shiann Sivell, Sivell, Shiann , A TANDARD S See . (June 16, 2020, 9:29 AM), https://www.beaumontenterprise.com/ IKEN IKEN Long Awaited Confederate Monument Goes Up at Battle of Aiken Re- MLK Billboard to Overlook Confederate Memorial Confederate Overlook to Billboard MLK Confederate Monument Erected at Battle of Aiken Site note 241 (indicating that in light of the the of light in that (indicating 241 note NTER , A note 88. There also appears to be a similar marker on the actual battlefield, E Protests of ConfederateMonument inOrange Renew in Wake ofGeorge Floyd’s New ConfederateNew Monument Unveiled, DedicatedPrivateAiken LandNear on On June 13, 2020 about 40 people protested at the memorial. the at protested people 40 about 2020 13, June On supra (Sept. 30, 2017), https://www.aikenstandard.com/news/new-confederate- supra supra , WJBF (Sept. 27, 2017, 9:59 PM), https://www.wjbf.com/news/long-awaited- Biles,

EAUMONT EAUMONT The Barnard E. Bee Camp of the SCV erected the monument in 2017, in monument the erected SCV the of Camp Bee E. Barnard The TANDARD See The Battle of Aiken Jarvie, Jarvie, Renetta DeBose, Biles, Dede King, Amanda Jeremy Parzen, Id. Dick, Jacob S , B In Aiken, South Carolina, there is a new granite monument dedicated to the 2. Monument to the Immortal Spirit of the Confederate Cause in Aiken, South 243 244 239 240 241 242 236 237 238 IKEN IKEN Carolina Carolina cause.” Confederate the of spirit “immortal anyone anyone in attendance [at the dedication] was opposed to what the Barnard during doing, they the loud ceremony”). out didn’t express their feelings E. Bee Camp was monument-erected-battle-aiken-site. monument-erected-battle-aiken-site. com/news/battle-of-aiken-visitors-speak-on-confederate-monuments-heritage/article_213fd78c- 2020). in 15,000estimated visitors (Sept. 30, 2017, 8:07 PM), https://www.augustachronicle.com/news/2017-09-30/confederate- visitaikensc.com/calendar/event/the_battle_of_aiken visitaikensc.com/calendar/event/the_battle_of_aiken (last visited Feb. reenactment of 23, considerable size. 2021). This is Monuments, a Heritage 2020), https://www.gofundme.com/f/e57cw-mlk-billboard-to-overlook-confederate-memorial. https://www.gofundme.com/f/e57cw-mlk-billboard-to-overlook-confederate-memorial. 2020), at the Battle of Aiken reenactment site. reenactment Aiken of Battle at the campaign raised $6,227 and secured the billboard space for 6 months starting in August 2020. As of this writing, the Confederate Monument of the Wind remains in place and SCV. the by owned be to continues honors honors the Confederate soldiers that fought in the Battle of 1865. Aiken in February live, sleep, eat, reenactors where Aiken of Battle the of reenactment three-day annual 1865. in world the of version recreated a in fight and

rather than the reenactment site. enactment Site confederate-monument-goes-up-at-battle-of-aiken-re-enactment-site/. A Murder 288 288 the next year, including MLK Day 2021 and Black History Month 2021. REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM 55e0-11ea-afe6-67286818d9bf.html (noting that https://www.hmdb.org/m.asp?m=10061 (last visited Feb. 3, 2021). Feb. visited 2021). 3, (last https://www.hmdb.org/m.asp?m=10061 monument-unveiled-dedicated-on-private-land-near-aiken/article_857c150a-a5fa-11e7-b74c- news/article/Protests-of-confederate-monument-in-Orange-renew-15338643.php. 3f543d7d4eae.html. 3f543d7d4eae.html. 43059-lcb_25-1 Sheet No. 152 Side B 03/17/2021 10:17:28 B 03/17/2021 152 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 153 Side A 03/17/2021 10:17:28

, , 12 COM SFA . L , W , TANDARD , A S (Aug. 28, 2017, 28, (Aug. , https://www. IKEN IKEN ILL , A , IKEN the simpleobelisk A , H , at this specific site over the the over specific site at this ATTLE OF

A New Monument Confederate Goes B

, The monument is in a privately privately a in is monument The Proceeds from the reenactment funded the mon- note 244. 244. note The reenactment is open to the public and tickets are are tickets and public the to open is reenactment The (Aug. 28, 2017, 9:09 PM), https://www.nbcnews.com/news/us- The local NAACP chapter indicated that while it would would it while that indicated chapter NAACP local The supra Coggins asserts that the monument is important for hon- for important is monument the that asserts Coggins , New Confederate Monument Goes Up in Alabama in Up MonumentConfederateGoes New Confederate, Civil War Monuments Dot Aiken County Aiken MonumentsDot War Confederate, Civil EWS New Confederate Monument Set to be Unveiled in Alabama New Confederate Monument to be Unveiled in Crenshaw CountyCrenshaw in Unveiled be MonumentConfederateto New “It stands alongside other Confederate memorials, flags, and

N

New Confederate Monument in Aiken Not a Protest Says Leader of Local Group Local Leaderof SaysProtest a Not AikenConfederate MonumentinNew (Sept. 27, 2017), https://www.postandcourier.com/aikenstandard/news/new- , NBC

Randi Hildreth,Randi Id. Connor Sheets, Eberhardt,Robin The Battle of Aiken of Battle The Battle of Aiken February 20 and Demarest, Colin 21, 2020 Biles, Dede Id. The that claimed the landowner event had been long planned before, but the Alabama TANDARD S 3. Confederate Monument in Crenshaw County, Alabama Alabama County, Crenshaw in Monument Confederate 3. me- stone grey a dedicated Coggins, David Alabama, in SCV the of member A In the fall of 2017, the SCV indicated that it was not erecting this monument this monument not erecting it was that indicated SCV the 2017, of In the fall 251 252 253 254 245 246 247 248 249 250 M K IKEN IKEN ument. available to purchase every year. every purchase to available replica replica .” . . . cannons news/new-confederate-monument-goes-alabama-n796531. news/new-confederate-monument-goes-alabama-n796531. 10:20 AM), https://thehill.com/blogs/blog-briefing-room/348244-alabama-community-unveils- battleofaiken.org/ (last visited Feb. 23, 2021). 2021). 23, Feb. visited (last battleofaiken.org/ (June 27, 2020), https://www.aikenstandard.com/news/confederate-civil-war-monuments-dot- is is dedicated to the unknown Alabama soldier. aiken-county/article_b59fa1e4-b564-11ea-bb0b-a3cda293360e.html. aiken-county/article_b59fa1e4-b564-11ea-bb0b-a3cda293360e.html. Located in an area around the towns of Brantley and Luverne, and Brantley of towns the around area an in Located Chapter of the NAACP did not believe him. Alex Johnson, Up in Alabama (Aug. 22, monument-to-be-unveiled-in-crenshaw-county/. 2017, 10:50 PM), https://www.wsfa.com/story/36194304/new-confederate- A confederate-monument-in-aiken-not-a-protest-says-leader-of-local-group/article_2536cf5d-ca7f- 5b1d-a976-051d31acd7b3.html. owned owned “park” called Confederate Veterans Memorial Park, also owned and devel- oped by Coggins. 2021] 2021] his- living encampments, military nineteenth-century authentic are there actments, service, signal and engineer an facilities, medical of reproductions presentations, tory MONUMENTS CONFEDERATE PRIVATE and civilian portrayals.” 289 LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM

morial in Crenshaw County just weeks after the 2017 Charlottesville protests. (Aug. 18, 2017), https://www.al.com/news/2017/08/new_confederate_monument_to_be.html. (Aug. 18,2017), https://www.al.com/news/2017/08/new_confederate_monument_to_be.html. based upon its siting on privately owned property. owned privately on its siting upon based prefer prefer monuments to more unifying figures, it would not oppose this monument as as a form of backlash against monument removal across the South, but noted its to erect this monument planning intentional long-term course of many years. C Y 43059-lcb_25-1 Sheet No. 153 Side A 03/17/2021 10:17:28 A 03/17/2021 153 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 153 Side B 03/17/2021 10:17:28 M K At

C Y , (Aug. 27, The The monu-

, WSFA (Aug. , WSFA (Aug. COM , https://www. . OMMEMORATIVE L , C , A ATABASE On Bentonville Battlefield, Battlefield, Bentonville On D Although Although the statue is pri-

(Aug. 16, 2017, 3:43 PM),

, This monument also shows a a shows also monument This ARKER M

. BSERVER Martha Quillin, IST O (“The statue was built on private land based

, https://www.ncpedia.org/monument/joseph- & see also see , H PEDIA note 256. The Alabama Division of SCV anticipates in- anticipates SCV of Division TheAlabama EWS EWS

note 260

, N supra supra , NC , supra

, ]. ].

This monument depicts Joseph Johnston, a senior general general senior a Johnston, Joseph depicts monument This New Confederate Memorial Unveiled in Alabama New ConfederateMonument Unveiled in Crenshaw County note 250. The monument is a bronze statue of him atop a stone and brick brick and stone a atop him of statue bronze a is The monument supra supra Monument Unveiled Monument N.C., N.C., https://docsouth.unc.edu/commland/monument/28/ (last visited Feb. 23,

Another SCV member stated that the monument was important because because important was monument the that stated member SCV Another Id. General Joseph Eggleston Johnston Joseph Johnston Monument Joseph Johnston Monument Id. Connor Sheets, Johnson, Sheets, Day, Samantha Joseph Johnston Monument, Bentonville Battlefield, Four Oaks Monument Unveiled Monument 4. Joseph Johnston Monument in Bentonville, North Carolina Carolina North in Bentonville, Monument Johnston 4. Joseph On March 20, 2010, the Smithfield Light Camp, a local chapter of To avoid controversy, the Smithfield Light Infantry placed the statue on do- More than 500 people showed up for the unveiling of the monument. 261 262 263 264 255 256 257 258 259 260 ANDSCAPES the SCV in North Carolina, unveiled a new Confederate monument near the Ben- near monument a Confederate new unveiled Carolina, the North in SCV trend, demonstrating that some of these monuments are being installed by private belong. they which to organizations the than rather individuals the event, the SCV asked for donations to support erecting another monument— Navy. this one Confederate to the hmdb.org/m.asp?m=34181 (last visited 3,Feb. hmdb.org/m.asp?m=34181 visited 2021). (last 2017), https://www.al.com/news/2017/08/more_than_200_people_attend_un.html [hereinafter Sheets, base with the inscription “Defender of the Southland to the End.” stalling more Confederate monuments in response to recent removal efforts but think it is be will that land. most likely on private L 2021). 2021); 3, Feb. visited (last johnston-monument new-confederate-monument. 290 290 oring ancestors, explaining “[w]e should all be proud of our Confederate tors.” ances- in vain.” not was did ancestors our what that know people “let to they needed REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM officer officer in the Confederate Army, who served in the Mexican-American War and Wars. Seminole $100,000. ment cost tonville tonville Battlefield. nated land private located adjacent to the battlefield. on the belief that approval to place it on state-owned land would be incredibly time-consuming and likely impossible.”). 28, 2017, 1:53 unveiled-in-crenshaw-county/. AM), https://www.wsfa.com/story/36228411/new-confederate-monument- General’s General’s Fans Find Him a Home 43059-lcb_25-1 Sheet No. 153 Side B 03/17/2021 10:17:28 B 03/17/2021 153 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 154 Side A 03/17/2021 10:17:28

, , DVISOR ETERANS A V Confederate RIP , T The close prox- close The , http://www. , http://www.

The plaza hon- The SCV decided decided SCV The

ONFEDERATE ONFEDERATE ETERANS C V ONS OF S ONFEDERATE ONFEDERATE

C 2156 (Mar. 21, 2010, 12:00 AM), https://www. 260. 260. 260.

ONS OF S

IMES AMP AMP note note

T C

2156 Bentonville Battlefield State Historic Site Historic State Battlefield Bentonville The plaza is also part of the SCV’s program “Flags “Flags program SCV’s the of part also is plaza The supra supra

, , AMP AMP EGAN EGAN , L.A. C R

, Review, H. EGAN EGAN R

H. See, e.g. OHN The five flags displayed include the Texas state flag surrounded by

OHN , J , J The The memorial is located on private property in downtown Palestine,

It consists of a plaza with a central flag display, two granite monuments, monuments, granite two display, flag central a with plaza a of consists It

Joseph Johnston Monument Johnston Joseph Id. Confederate Veterans Memorial Plaza—Palestine, Honor Your Ancestor with a Memorial Id. Id. Id. Id. Home Joseph Johnston Monument Johnston Joseph For example, commenters on Trip Advisor include pictures of the monument on their The John H. Reagan Camp No. 2156 of the SCV opened its Confederate Vet- Confederate its opened SCV the of 2156 No. Camp Reagan H. John The 5. Confederate Veterans Memorial Plaza in Palestine, Texas Texas Palestine, in Plaza Memorial Veterans Confederate 5. 268 269 270 271 272 273 274 265 266 267 M K Feb. 3, 2021). ors Confederate veterans from Anderson County, the State of Texas, and across the the across and Texas, of State the County, Anderson from veterans Confederate ors South. reaganscvcamp.org/Flyers/CVMP-Palestine_Paver_Flyer_4-2013.pdf Feb. (last visited 2021). 3, Texas, across the street from the current veterans memorial park. memorial veterans current the from street the across Texas, For a donation, people can memorialize their ancestors and others with engraved brick pavers. Brick Paver!!! Brick https://www.newsobserver.com/news/local/article167553747.html; David Zucchino, Zucchino, David https://www.newsobserver.com/news/local/article167553747.html; General Returns to Battlefield latimes.com/archives/la-xpm-2010-mar-21-la-na-statue21-2010mar21-story.html. reviews of the state historic park, suggesting that they are not distinguishing between the public and private land. https://www.tripadvisor.com/Attraction_Review-g49144-d104891-Reviews-Bentonville_ Battlefield_State_Historic_Site-Four_Oaks_Johnston_County_North_Carolin.html (last visited erans Memorial Plaza on April 13, 2013, following a parade and dedication cere- mony. Across Dixie,” that aims to honor Confederate veterans throughout the South. 2021] 2021] it. to access physical and visual direct has public the property, vate MONUMENTS CONFEDERATE PRIVATE tour. driving battlefield’s the on stop a from feet 100 only is It or to sig- adjacent lands a also may using inholdings become trend: This approach 291 nificant or public sites for these monuments, particularly for the relocation of for- monuments. public merly LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM

the first, second, and third flags national of the along Confederacy, with the Con- http://www.reaganscvcamp.org/ http://www.reaganscvcamp.org/ (last visited Feb. 3,2021). benches, and other displays. imity to the battlefield makes the monument seem like it is part of the public site. public the of part is it like seem monument the makes battlefield the to imity to the build land to on based on it statue place private on the “approval that belief state-owned land would be incredibly time-consuming and likely impossible.” C Y 43059-lcb_25-1 Sheet No. 154 Side A 03/17/2021 10:17:28 A 03/17/2021 154 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 154 Side B 03/17/2021 10:17:28 M K C Y ETX ETX note 8. 8. note Citizens Citizens (Oct. 25, 25, (Oct. supra It is not clear clear not is It

NTONIO A This This shows that many

. , KLTV7, (Apr. 13,2013, AN S supra Y , , KLTV (Mar. 11, 2013, 11:49 , M came to show their disdain for the new new the for disdain their show to came SCV Misunderstood Historical Society in Georgetown, Delaware Delaware Georgetown, in Society Historical note 8. Right before the opening of the plaza, the group group the the plaza, of the opening before 8. Right note Davidson stated that the display of the flag within supra note 276. supra supra , Confederate Monuments in Texas

After After the opening ceremony, members of the SCV and NAACP met

on displays flag previous from opposition community with met been had group The Flag Over Palestine Flag Dylan Dylan Baddour, Palestine,OverConfederate Controversy High FliesUp Heats Flag Id. Id. Kenneth Davidson, the President of Palestine’s NAACP chapter, organized a 6. Confederate Monuments at the the at Monuments Confederate 6. realize not do but land, private on monuments Confederate see we Sometimes 279 275 276 277 278 supporting the organization displaying the monument. This could also placed. is monument the take which on land the for breaks tax giving of form the Court to fly the Confederate flag over the Anderson County Courthouse. Vernon, flag. the down take to SCV the pushed who members community from protests to led This Sons of Confederate Veterans Group Says They Are Misunderstood PM), https://www.kltv.com/story/21578735/etx-sons-of-confederate-veterans-group-says-they- public land. In 2011, the group obtained approval from the Anderson County Commissioners’ behind closed doors to discuss their contentions regarding the plaza. the regarding contentions their discuss to doors closed behind the the plaza symbolizes “hatred, depression, oppression, slavery, and it’s nothing but division.” rally rally to be held on the same day as the opening of ceremony the plaza.

of counter-protests, many members of the Palestine community seem to dislike what what dislike to seem community Palestine the of members many counter-protests, of the SCV and the memorial plaza represent. Since its opening in the 2013, from street the across the located is plaza plaza Confederate the Because place. in remains current veteran’s memorial park, many people might mistakenly believe that the although by com- of the Palestine. And operated city and owned plaza is memorial munity members may not agree with the plaza and its messaging, the SCV likely property. private on itas sits plaza the remove to pressure no feels outright both happen with could thatThis by in part funded were they public. the grants for the monuments or in connection with public grants and other benefits what they discussed during the meeting nor whether the two groups came to a con- a to came groups two the whether nor meeting the during discussed they what clusion on how to handle their disagreements. As shown above, and by the degree are-misunderstood/. This inspired the SCV construction of the plaza. Vernon, to search for private was property, denied leading participation in a to town festival the in March 2013. Commerce The released Palestine a Area statement Chamber that of said “[i]t is not in the community’s best politically interest divisive groups to to participate allow . . . .” 10:19 PM), https://www.kltv.com/story/21971210/confederate-flag-flies-high-over-palestine- controversy-heats-up. 292 292 flag. battle federate REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM 2017, 2017, 4:21 PM), https://www.mysanantonio.com/news/houston-texas/slideshow/Confederate- monuments-in-Texas-106212.php. of Palestine and and from of all others over Texas Palestine plaza by attending the rally. members of the Palestine community did not memberssupport the PalestineSCV did as of not the an organization.community 43059-lcb_25-1 Sheet No. 154 Side B 03/17/2021 10:17:28 B 03/17/2021 154 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 155 Side A 03/17/2021 10:17:28

. , , EL EW EW , D , N AZETTE G APE , http://www. The organiza-

, C Although the loss loss the Although

USEUM M The SCV erected the mon- ARRIAGE ARRIAGE C american.com/culture/history/item/26865- ARVEL M

, Confederate Flag to Stay Over Delaware Museum While state funds do not directly pay pay for monu- the do directly While funds not state

SCV raised money specifically for the monument and no no and monument the for specifically money raised SCV Petition Launched to Remove Confederate Statute, Flag in Georgetown Confederate Flag, Monument Hurt Delaware Nonprofit’s State Funding Delaware Museum Group Loses Taxpayer Funding Over Confederate NAACP: Remove Georgetown’s Confederate Monument note 284. 284. note More More Confederate Monuments Going Up — On Private Land (July 23, 2019, 9:44 AM), https://www.delmarvanow.com/story/news/ https://www.delmarvanow.com/story/news/ AM), 9:44 2019, 23, (July (June 22, 2020), https://delawarestatenews.net/news/petition-launched-to- 2020), 22, (June supra OW EWS N Glenn Rolfe, (Sept. 6, 2017), https://www.thenew (noting that this monument was erected in recognition of Delaware citizens joining N , WHYY (July 23, 2019), https://whyy.org/articles/delaware-museum-group-loses-

This state money is the reason that the NAACP called on the state of Dela- of state onthe called NAACP the that reason the is money state This . See Chris Flood, Steve Byas, Goebel, Cris Barrish, Plan a Visit to Marvel James Fisher & Taylor Museum Potter, Id. Taylor Goebel,

(June 24, 2015, 5:48 PM), https://www.delawareonline.com/story/news/local/ T S In July 2019, Senator Trey Paradee, a member of the General Assembly’s Joint Joint Assembly’s General the of member a Paradee, Trey Senator 2019, July In One example of a Confederate monument on private land is the monument

285 286 287 288 280 281 282 283 284 . M K NLINE EL ELMARVA MERICAN MERICAN taxpayer-funding-over-confederate-monument/. taxpayer-funding-over-confederate-monument/. 2019/07/23/confederate-symbols-hurt-georgetown-historical-society/1754677001/. tion’s building houses the Marvel Carriage Museum. Carriage Marvel the houses building tion’s remove-confederate-statue-flag-in-georgetown/. (Aug. 18, 2017), https://www.capegazette.com/article/naacp-remove-georgetown’s-confederate- monument/140006. ument in May 2007. organization. non-profit the support generally funds public upkeep, its nor ment The historical society has received state grants for support of its museum and mis- sion. D A Monument (last Feb.marvelmuseum.com/index.cfm visited 3,2021). O the Confederacy). D erate flag is not removed from the site. from is not removed flag erate of grant funds appears to have a significant impact on the non-profit, it does not 2021] 2021] MONUMENTS CONFEDERATE PRIVATE 293 if funding the The the said Governor he withdrawing that Confed- would support LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM public funds were funds involved. public Finance Committee, recommended that the historical society be removed from the from the be removed society historical that the recommended Committee, Finance State’s Grant-in-Aid list due to its open display of Confederate symbols. The bill was unanimously approved. Senator Paradee asserted that he did not “discuss the consider would he though advance, in society historical the with funding in change symbols.” Confederate the of rid got they if grant the restoring ware ware to stop the issuance of an $11,500 Grant-in-Aid to the historical society. 2015/06/24/confederate-flag-stay-delaware-museum/29238451/. behind behind the Georgetown Historical Society building in Delaware. look to have persuaded the organization to look towards removing it from the non- the from it removing towards look to organization the persuaded have to look more-confederate-monuments-going-up-on-private-land. C Y 43059-lcb_25-1 Sheet No. 155 Side A 03/17/2021 10:17:28 A 03/17/2021 155 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 155 Side B 03/17/2021 10:17:28

/ M K See C Y (July (July APITOL cemetery , C - EWS OURTHOUSE , C , 13N Norfolk Votes to BC A

, , CNN (Aug. 16, 2017, 3:56 3:56 2017, 16, (Aug. CNN , In this way, monuments

In museums and on battlefields, (Oct. 23, 2019, 9:01 AM), https://www.usatoday. ely-owned cemetery in Seattle). Seattle). cemetery in ely-owned in the Shenandoah Valley). Elmwood Cemetery, which which Cemetery, Elmwood Valley). Shenandoah the in ODAY norfolk-virginia-ok-move-confederate-monument , https://www.norfolk.gov/facilities/facility/details/Elmwood- , T

Johnny Reb” No Longer Welcome in Norfolk: Virginia City Gets OK OK Gets City Virginia Norfolk: in Welcome Longer No Reb” Johnny WhereConfederate Monuments EndUp Public spaces and public and private cemeteries serve as a Both the UDC and local government officials agreed to to agreed officials government local and UDC the Both

, USA ORFOLK N Confederate Memorial in Capitol Hill’s Lake View Cemetery View Lake Hill’s Capitol in Memorial Confederate Confederate Statue Removed from NC Courthouse GroundsCourthouse NC fromRemoved ConfederateStatue /2019/10/23/

(July 4, 2020, 5:00 PM), https://www.capitolhillseattle.com/2020/07/ https://www.capitolhillseattle.com/2020/07/ PM), 5:00 2020, 4, (July ITY ITY note 285 (proving response of museum director of museum response of funding). this to loss 285 note (proving , C , jseattle, John Bacon, “ Bacon, John LOG

, , supra B (Mar. (Mar. 12, 2019), https://www.courthousenews.com/confederate-statue-removed-

.

The UDC was ordered to remove the statue, although in the end the city city the end the in although statue, the remove to ordered was UDC The Emanuella Grinberg, Grinberg, Emanuella Williams, Erika Id. Rolfe, Rolfe, See, e.g. See,e.g. ERV EATTLE EATTLE S S In some towns, cemeteries appear to be a location agreed upon by both local As As we discussed in the Confederate are monuments introduction, also found 292 293 294 289 290 291 ILL ILL EWS EWS where-soldiers-are-buried (profiling this where-soldiers-are-buried vote and the debate between Elmwood Cemetery and battlefieldmonumenttoa this relocating was ultimately chosen, is a public cemetery owned and operated by the City Elmwood of Cemetery Norfolk. more funereal, role. With the removal to a cemetery, much of the problematic mes- problematic the of much cemetery, a to removal the With role. funereal, more saging around the statue is eliminated. These resources perhaps can move back to- ward memorializing the dead and honoring lost family members instead of serving mythology. Cause Lost of the as symbols governments and heritage groups. In Winston-Salem, North Carolina, the UDC was found to have never conveyed a statue of a lone Confederate soldier that long stood in front of the county courthouse to the city (so the UDC retained owner- ship). to Move Confederate Statue confederate-memorial-in-capitol-hills-lake-view-cemetery-toppled/ (discussing controversial Move Confederate Statue 8, to 2020), Cemetery https://wset.com/news/local/norfolk-votes-to-move-confederate-statue-to-cemetery- Where Soldiers Are Buried they can often be contextualized. In cemeteries, the monuments play a different, Cemetery-47 (last visited Feb.visited (last 2021). Cemetery-47 23, paid paid for the removal. are shifting back to cemeteries where the first Confederate monuments were initially initially were monuments Confederate first the where cemeteries to back shifting are battlefields and museums, that asserted cemeteries, have erected. historians Indeed, monuments. Confederate for places best the are PM), https://www.cnn.com/2017/08/16/us/where-confederate-statues-end-up/index.html. PM), https://www.cnn.com/2017/08/16/us/where-confederate-statues-end-up/index.html. N H relocate relocate the monument to a nearby private cemetery, Salem Cemetery, with the 294 294 grounds. profit’s Cemeteries Private C. REVIEW LAW CLARK & LEWIS in private cemeteries. 25.1 [Vol. LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM UDC-owned locatedmonument in privat com/story/news/nation 2452814001/ (discussing the relocation of this monument); Elizabeth Tyree, from-nc-courthouse-grounds/. compromise compromise location for many removed monuments. 43059-lcb_25-1 Sheet No. 155 Side B 03/17/2021 10:17:28 B 03/17/2021 155 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 156 Side A 03/17/2021 10:17:28 , but (July 2020), Both will go go will Both

IMES T , WSOCTV (July 7, https://salisburync.gov/

, Lawsuit Lawsuit Claims Removal of RANKLIN F

, It isbeing relocated toa city- The UDC has also agreed to to agreed also has UDC The ALISBURY S , https://www.ncpedia.org/monument/ https://www.ncpedia.org/monument/ , (July 2, 2020), https://wakeweekly. https://wakeweekly. 2020), 2, (July Jack Kessler, ITY ITY It is a bronze statue of the muse Fame Fame muse the of statue bronze a is It A Confederate statue known as Old Old as known statue Confederate A PEDIA EEKLY https://www.cavehillcemetery.com/about/map/ https://www.cavehillcemetery.com/about/map/ , C confederate-statue-illegal,211522? (noting that confederate-statue-illegal,211522?

see also W , , NC , AKE and Louisburg, North Carolina. 8/john-b-castleman-statue-louisville-taken-down- W EMETERY

J. (June 8, 2020, 6:34 AM), https://www.courier- , Fame appeared to be a public monument because because monument public a be to appeared Fame Cemetery Tourist: Salem Cemetery in Winston-Salem, NC C In 1908, the county gave the land to the UDC, mak- UDC, the to land the gave county the 1908, In

ILL ILL H OURIER C AVE Monument Monument Case Headed for a Hearing , C

Tanya Tanya Marsh, note 303. 303. note StatueofFormer Confederate Soldier Turned Lincoln Sympathizer Quietly Sent It is supposed to go to his burial site at Cave Hill Cemetery, Hill Cave at site burial his to go to supposed is It (Nov. 22, 2016), https://funerallaw.typepad.com/blog/2016/11/cemetery-

supra LOG OUISVILLE About About Old Lutheran Cemetery L B

see also also see

;

, L. See BenTobin, Cemetery Map Tobin, Fame Confederate Monument, Salisbury Monument, Confederate Fame Id. Id. United Daughters of the Confederacy Sign Agreement to Move ‘Fame’ Monument in Id. Confederate Statue ‘Fame’ Removed from Downtown Salisbury Carey Johnson, , WBTV (June 22, 2020, 2:23 PM), https://www.wbtv.com/2020/06/22/united- Other monuments across the South are also headed to private cemeteries. The The cemeteries. private to also headed are South the across monuments Other 302 303 304 305 298 299 300 301 295 296 297 M K UNERAL UNERAL overview overview of cemetery history; the cemetery was deeded to the City in 1980 so it is a public supportingadying soldier. June 8, 2020. 8, June John Castleman monument in Louisville, Kentucky was removed by the city on Government/Public-Works/Cemeteries/Old-Lutheran (last visited Feb. 23, 2021) (providing burials). new to closed one although cemetery, confederate-monument-state (last visited Feb. 3,2021). is is currently in storage pending relocation. Louisburg Confederate Statue com/stories/lawsuit-claims-removal-of-louisburg- Illegal ing ing a this monument. private to Storage journal.com/story/news/local/2020/06/0 cherokee-triangle/3173739001/. Feb. (last visited 3,2021). F 2020, 6:07 PM), https://www.wsoctv.com/news/local/confederate-statue-salisbury-be-moved- overnight-city-says/X6T4RMHQ75ADDA2OKFGZNWMUHM/. 2021] 2021] mayor describing it as “a very dignified location.” MONUMENTS CONFEDERATE PRIVATE 295 cemetery. owned LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM of its prominent location in the center of the town. the of center the in location prominent its of tourist-salem-cemetery-in-winston-salem-nc.html of this cemetery). historic overview (providing to cemeteries. The Salisbury monument, called 1905. in the built monument UDC “Fame a is ment,” Confederate Monu- (1) that the town didn’t have the right to remove the monument because it wasn’t the violated property town the (3) and statute, statue Carolina’s North follow to failed town the that (2) owner, open meeting laws when deciding to remove); https://www.thefranklintimes.com/news.php?viewStory=44767 a law (describing suit that argues remove monuments in Salisbury in monuments remove Salisbury daughters-confederacy-sign-agreement-move-fame-monument-salisbury/. the Louisburg relocation process may process relocation litigation).be the Louisburg by delayed pending C Y 43059-lcb_25-1 Sheet No. 156 Side A 03/17/2021 10:17:28 A 03/17/2021 156 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 156 Side B 03/17/2021 10:17:28 , , M K C Y Pub- ISTORIC ISTORIC AINESVILLE , H ,

, G A private cem- private A

reenwood-cemetery-southern-arizona- As the tide ofpublic opinion regarding ConfederateArizona:TheyMonumentsShould in note 15, at 8. 8. at 15, note After Confederate Monuments Fall, Where Do They Go? They Do Where Fall, Monuments Confederate After supra , ABOUT THEM? THEM? ABOUT Here’s the Real History Behind Arizona’s Confederate Monuments (Aug. 16, 2017, 8:00 PM), https://www.usatoday.com/story/ Life and Death Confederate Statue Removed from Downtown Gainesville ODAY T (June 7, 2017, 6:00 AM), https://www.phoenixnewtimes.com/ https://www.phoenixnewtimes.com/ AM), 6:00 2017, 7, (June

CityManager Touts Trout Creek Fish Camp for Confederate Memorial IMES , J. (July 23, 2020, 9:00 AM), https://www.wsj.com/articles/after-confederate- T , USA (Aug. 6, 2020), https://historiccity.com/2020/staugustine/news/city-manager-touts- EW The Veteran’s Association, as a blanket rule, does not allowing relocation of confederate confederate of relocation allowing not does rule, blanket as a Association, The Veteran’s Bauerlein, Valerie & Calvert Scott See,e.g. Phelps, & Owley Andrew Andrew Caplan, Antonia Noori Farzan, TREET TREET EWS N S Not only are relocations of old monuments occurring, but also some new mon- new some also but occurring, monuments old of relocations are only Not However, not all are cemeteries willing to accept Confederate mon- relocated In other work, we detailed how to approach conceptually removal efforts for N

308 309 310 311 306 307 (Aug. 14, 2017, 9:54 AM), https://www.gainesville.com/news/20170814/confederate- AM), 9:54 2017, 14, (Aug. . IV. WHAT CAN WE DO ABOUT THEM? WHAT SHOULD WE DO DO WE SHOULD WHAT THEM? ABOUT DO WE CAN WHAT IV. ALL ITY ITY HX UN monuments into federal veterans’ cemeteries. monuments-fall-where-do-they-go-11595509200. Come Down? ter of the SCV the dedicated Arizona Veterans Monument Confederate in Green- cemetery. a private Lawn Cemetery, Memory wood news/local/arizona/2017/08/16/z-arizona-confederate-monuments/570467001. news/local/arizona/2017/08/16/z-arizona-confederate-monuments/570467001. W C have also specifically noted struggles where Confederate monuments are encum- bered with conservation easements, or are designated as historic sites or resources S P Confederate monuments shifts, many local governments are supportive of removal, removal, of supportive are governments local many shifts, monuments Confederate but can be stymied by the need to deal with multiple legal issues or barriers. We 296 296 the in it placed who UDC, the to returned recently was Florida, Gainesville, in Joe, city. the of south Cemetery Ridge Oak private REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM “unequivocally” opposing any “unequivocally” on monuments Confederate their grounds. etery in Baltimore, where Confederate soldiers are buried, rejected the city’s pro- posal to relocate Confederate monuments there, with the cemetery’s president licly-owned cemeteries, including federally owned and administered cemeteries, are are cemeteries, administered and owned federally including cemeteries, licly-owned statues. of these custodians as the serve they that requests also rejecting trout-creek-fish-camp-for-confederate-memorial-117832 (noting that the VA had rejected St. statue-removed-from-downtown-gainesville. news/arizona-confederate-monuments-state-capitol-g Henderson, Cydney veterans-cemetery-9392610; uments are occasionally appearing in cemeteries. For example, in 1999, a local chap- local a 1999, in example, For cemeteries. in appearing occasionally are uments there. buried already are soldiers memorialized the if even uments Confederate monuments on public lands. public on monuments Confederate Augustine’s relocation request). 43059-lcb_25-1 Sheet No. 156 Side B 03/17/2021 10:17:28 B 03/17/2021 156 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 157 Side A 03/17/2021 10:17:28 409 (2012). There AW L RESERVATION P ISTORIC ISTORIC note 14, at 682. 682. at 14, note H

, Yet, these tools can be deployed in the same same the in deployed be can tools these Yet, supra , YRNE B While some of that guidance is helpful, those articles

ETER ETER P

like nuisance and zoning ordinances. While local laws can can laws local While ordinances. zoning and nuisance like J.

Etched in Stone & RONIN B

C. ARA ARA Phelps & Owley, S This Section details a few of the available tools that can be used to limit or The truth is that there are few tools for removing Confederate monuments on on monuments Confederate removing for tools few are there thatis truth The Displaying Displaying a Confederate memorial on private land is within a landowner’s 312 313 M K contextualize monuments. First and foremost, local governments should be cautious cautious be should governments local foremost, and First monuments. contextualize when transferring ownership—ensuring that public money is not supporting the the and, mon- Confederate possible, that monuments where clearly demonstrating contextual- and signs add can governments available, Where public. not are uments its messaging. counteract and meaning monument’s the explain to ization is also the difficult governmental question authority under of the line First these that signal to ways for look should communities that argue We land. private on Amendment monuments drawing—or to determining obscure or the discourage appropriate Confederate private monuments scope are not of on public land potentially and are go not too public issue an is and focused is speech, far Article this which through lens but property the of outside and is where line/balancing does actually this impinge on protected that wetakehope to in up work. future First Amendment speech? This 2021] 2021] under state or federal law. MONUMENTS CONFEDERATE PRIVATE 297 LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM

are written for communities where the public landowner seeks removal through a Confederate private that situation the not simply is This process. legal and political present. monuments merly public monuments to private landowners, they are not contributing to this the outsourcing by problem it issue, removing essentially from the public domain, or control. to reach ability their beyond problems other creating potentially and manner as restrictions on sizes of flags or requirements for parking. Communities should also evaluate whether the monuments will likely lead to increased security nuisance. public a become to potential have or officials public from costs it private land. And permissible, may even if be frankly, unwise constitutionally to try to limit landowners having the freedom to build monuments (regardless of the con- to governments local urges Article this However, land. their on matter) subject govern- local particular, In monuments. such of impacts the minimize to ways sider nor public are neither monuments such that it clear make to attempt should ments publicly should also Communities supported. ensure that, by of their disposal for- all monuments regardless of topic. regardless all monuments rights and is generally protected rights by the protected is as and Amendment long First generally as the landowner laws, other with complies control the time and manner of speech (through regulations governing height re- strictions, setback rules, etc.), they cannot categorically prevent the placement of Confederate memorials because a blanket ban would result in potentially limiting C Y 43059-lcb_25-1 Sheet No. 157 Side A 03/17/2021 10:17:28 A 03/17/2021 157 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 157 Side B 03/17/2021 10:17:28 M K C Y

(Aug. 6, 2020, 8:53 PM), PM), 8:53 2020, 6, (Aug. OMORROW T It It is likely that many people would have

Albemarle Albemarle County Votes to Remove Its Confederate No observations have been made concerning re- concerning made been have observations No HARLOTTESVILLE HARLOTTESVILLE , C note 173. The county’s choice of location was a misstep. Displayed in a in Displayed a misstep. was of location choice The county’s note 120. note 122. 122. note supra supra supra supra supra ., ., Charlotte Rene Woods, See, e.g Metcalf, Turque, Mervosh, State and local governments (along with universities and other owners of Con- of owners other and universities with (along governments local and State The concerns seen with Reb Johnny show why some governments have taken Montgomery Montgomery County’s conveyance of the Johnny Reb statue offers a valuable We urge considering governments the monuments to of removal Confederate 314 315 316 317 but must be carefully considered to avoid unintended consequences. Many local governments are requiring relocation outside their area but leave open the option for public displays elsewhere. https://www.cvilletomorrow.org/articles/albemarle-county-votes-to-remove-its-confederate- monuments-from-court-square/ (noting that vote to remove these monuments and community that these concern transferring monuments privateto ownership may create similar issues). home. In less than two years, its new home, which was in some ways more publicly publicly more ways some in was which home, new its years, two than less In home. of- governments local a Insolution, to craft trying unworkable. proved also visible, Execu- County monuments. the display to willing individuals or museums seek ten tive Leggett emphasized the need to find a location that local residents would be easily able visit. to

Monuments Monuments from Court Square public public place at a ferry the crossing, statue of Johnny Reb greeted people upon en- 298 298 Restrictions Meaningful with Transfers A. Careful may to off want and out lands rush their to monuments) get federate monuments of their hands, and they cannot be blamed for this. Yet the Montgomery County, REVIEW LAW CLARK & LEWIS can parties private to that us show transfers examples Texas, Dallas, and Maryland, monument. the of display the over control of a loss mean 25.1 [Vol. LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM quirements quirements of contextualization, signage, or other similar restrictions that ownership. might public left it has once monument the to related messaging the limit the further step of adding restrictions in agreements related to conveyance or transfer transfer or conveyance to related agreements in restrictions adding of step further the of Confederate monuments. The types of restrictions involved differ, but as seen For displayed. be can monument the where limit geographically to tend they above, example, the City of Dallas imposed policy restrictions sensible preventing a the is monument This from area. metropolitan Worth Dallas-Fort the in displayed being perceived the location as public land and assumed that it was supported by the town town the by supported was it that assumed and land public as location the perceived agreed it as and contextualization special any require not did county The county. or where know not did it that argue easily not could it relocation, the for) paid (and to displayed. be it would or how lesson. lesson. It appears that the local government was so glad to find a willing party to accept the monument that it did not think too deeply about the monument’s new tering the state through this crossing. limit limit transferees to museums, battlefields, or other places where contextualization 43059-lcb_25-1 Sheet No. 157 Side B 03/17/2021 10:17:28 B 03/17/2021 157 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 158 Side A 03/17/2021 10:17:28 , (Dec. Cecil ERKELEY IMES As As noted , B ,

T

ONUMENT IN IN ONUMENT M , N.Y. , AR AND AND AR W

, ACE R

: The National Trust for Historic Historic for Trust National The

LAVES S This reevaluation has not only im-

note 22. NEELING supra supra , K

, to name a few recent examples for this trend trend this for examples recent few a name to 2018). OLDIERS 1, 3 (2013). 1, (2013). 3 S x–xiii ( x–xiii

. Monticello Monticello Is Done Avoiding Jefferson’s Relationship with Sally EV Landscape Landscape Fairness: Removing Discrimination from the Built R

MERICA L. (June 16, 2018), https://www.nytimes.com/2018/06/16/us/sally- 2018), 16, (June A Debate Over Cecil Rhodes Statue at Oxford Gains Steam Gains Oxford at Statue Rhodes Cecil Over Debate TANDING UC Berkeley Removes Racist John Boalt’s Name from Law School Law from Name Boalt’s John Racist Removes Berkeley UC Downtown L.A.’s Christopher Columbus Statue Is Being Removed for Good S

, TAH IMES T

ENTURY ENTURY AVAGE S -C and John Henry and Boalt, Henry John , 2013 U

Farah Stockman, Stockman, Farah IRK IRK , N.Y. . . (Nov. 9, 2018), https://www.lamag.com/citythinkblog/los-angeles-columbus-statue/ Gretchen Kell, Kell, Gretchen K See Statement on Confederate Monuments Stephen Stephen Clowney, Pamela Avila, Castle, Stephen AG (Jan. 30, 2020), https://news.berkeley.edu/2020/01/30/boalt-hall-denamed/ (discussing Without receiving assurances that the monuments will be appropriately dis- M 321 322 323 324 318 319 320

M K EWS INETEENTH Preservation, the national preservation umbrella advocacy group, now the supports group, advocacy umbrella preservation the national Preservation, relocation of formerly public monuments to “museums or other places where they may be preserved so that their history as of elements Jim Crow and racial injustice interpreted.” and recognized can be

played, local governments may be better off simply placing these resources in storage storage in resources these placing simply off better be may governments local played, concerns. pressing these address to solution an appropriate can craft they until N theformerlaw nameofthe school building, BoaltHall, relativelyits and recentrenaminglight in of John Henry Boalt’s racial views). N Hemmings hemings-exhibit-monticello.html (profiling recent exhibitions at the site focused on Jefferson, Environment L.A. 24, 2015), https://www.nytimes.com/2015/12/25/world/europe/cecil-rhodes-statue-oxford.html (profiling the debate at the University of Cape Town monuments commemorating Kingdom) the over of Cecil complicated Rhodes). legacy (South Africa) and at Oxford (United 2021] 2021] can occur and in a setting that is suited to having these statues present. Periodic reevaluations and reinterpretations of the past challenge oversimplified and unnu- MONUMENTS CONFEDERATE PRIVATE un- more a provide generally and assumptions, and understandings historical anced varnished or complex picture of past events. 299 LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM Sally Hemmings, and slavery generally). generally). slavery and Hemmings, Sally pacted pacted Confederate monuments, but has also extended to other monuments and Columbus, Christopher honoring structures and buildings of renaming the ture. Within the museum context, this has required many historic sites to shift their their shift to sites historic many required has this context, museum the Within ture. past. the of story accurate and complete a more tell to places these of interpretation is recent effort the to in- of relatively reinterpretation example this One prominent Monticello.stallatrecreationsdwellingsslave of to rethink what values society recognizes or holds the memorializing on up focused solely not were Cause Lost the to as monuments above, exemplars. cul- and life southernAntebellum of aspects other on focused also but Confederacy, (discussing the removal of this bronze statue as well as arguments over its long-termownershipby its overarguments wellthisbronze as statueas ofremoval(discussing the the City). Rhodes, C Y 43059-lcb_25-1 Sheet No. 158 Side A 03/17/2021 10:17:28 A 03/17/2021 158 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 158 Side B 03/17/2021 10:17:28 M K C Y Own- Eliminating Eliminating nt levels and in ppens at differe While the money does not go di- go not does money the While ese monuments in a fashion similar as t some of the activities and upkeep of their their of upkeep and activities the of some t note 181. 181. note supra , NTERIOR I note 12. 12. note note 109. 109. note While this may seem like a passive activity with little and cost little may with While this alike activity seem passive note 280. 280. note supra supra T OF THE ’ supra EP D

U.S. Garrison, Barrish, Tavernise, Lastly, all levels of government should end support of these private monuments monuments private these of support end should government of levels all Lastly, Public support for Confederate monuments ha Where Where confusion is possible, public entities should add signs, or other monu- Some Some support comes in terms of public funds supporting those organizations At times, as profiled above, Confederate monuments were placed strategically 325 326 327 328 awarding of grants to the Georgetown Historical Society has been offensive to many many to offensive been has Society Historical Georgetown the to grants of awarding grounds. its on message this displaying prominently in role its given rectly to the monument, which was erected solely with private funds, the continued continued the funds, private with solely erected was which monument, the to rectly myriad ways. myriad ways. For example, a on like small scale, moves of the initial removal land- scapingNathanthe Bedford near NashvilleForrestmonumentvis- in more it make ible to the public. ers of the adjacent public land could also add fencing, landscaping, signs, or other intention and message the support not does community the that affirm to elements monument. of the Monuments Confederate Private Facilitating Stop C. indirectly. and directly both possible, where the funding for organizations displaying th the State of Delaware has done with grants to the Georgetown Historical Society 300 300 Monuments Private from Public Distancing B. ments and elements that clarify that private monuments are private. For example, the like monuments private near signage or billboards erect could governments local REVIEW LAW CLARK & LEWIS out- statue Forrest Bedford Nathan the near or Wind the of Memorial Confederate interest public the dissociate to clearly and context this to provide Nashville side of all require also could governments local and State monumentation. private the from label to clearly others) and by SCV the run those cover private parks would (which 25.1 [Vol. regulation. land-use and zoning through local parks private as themselves LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM effect, the act of having public employees clear away vegetation to increase the reach reach the increase to vegetation away clear employees public having of act the effect, of a Confederate monument sends a clear signal that the government supports the pri- a of impact the amplifies thereby government The its message. and monument reversed. being now are hopefully efforts These monument. vate that display the monuments. For example, the Georgetown Historical Society in suppor to funds public receives Delaware land through a state grant-in-kind program. to make them appear to be part of public land, thus sending a public message. This This message. public a sending thus land, public of part be to appear them to make campus. Madison’s James on monument Ashby Turner the with case the is 43059-lcb_25-1 Sheet No. 158 Side B 03/17/2021 10:17:28 B 03/17/2021 158 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 159 Side A 03/17/2021 10:17:28 George George Floyd Protests Reignite Debate Over We have been tracking monument re- monument tracking been have We king steps towards supporting the mag- the supporting towards steps king

tps://www.npr.org/sections/live-updates-protests-for- V. CONCLUSION CONCLUSION V. (June 3, 2020), https://www.nytimes.com/2020/06/03/us/ IMES T

Mississippi Mississippi Governor Signs Law Removing Confederate Design from State Aimee Ortiz & Johnny Diaz, Diaz, Johnny & Ortiz Aimee and has NASCAR banned the display of flags Confederate at its erate statues (as well as from other state and local taxation). Their federal , N.Y. See generally Debbie Elliot, Even Even more subtle are tax implications. Where the private monument owners are Despite years of resistance and inaction, public support for the removal of pub- of removal the for support public inaction, and resistance of years Despite In the end, local, state, and federal governments should take a close look at There seems to be a much stronger public reaction against the use of Confed- 330 331 329 , NPR (June 30, 2020, 6:25 PM), ht M K continued display of this monument. this of display continued and Dylann Roof’s murder of congregants in Charleston, South Carolina, there was was there Carolina, South Charleston, in congregants of murder Roof’s Dylann and moval issues since 2017. While after Charlottesville and the Unite the Right Rally, moval Rally, Right the and Unite issuesthe While since 2017. after Charlottesville display their confed the interest. public support that they believes that the also status suggests government 501(c)(3) Perhaps even more much that hidden clear not is It is monuments. private some burden the potentially that easements conservation public support associated with funding the can acquisition be done to of limit support of these organizations through the tax code but is support important to note.awareness of this Confederate Statues confederate-statues-george-floyd.html. Flag nonprofit organizations, such as the SCV and UDC, they may receive significant tax benefits. In statesmany they will be also from exempt propertystate taxes for theincluding lands where they 2021] 2021] the supporting indirectly avoids but or contextualization result inremoval may not MONUMENTS CONFEDERATE PRIVATE 301 LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM

terests, but any steps that communities can take to clarify or eliminate monumental eliminatemonumental or clarify taketo can communities that stepsany but terests, blurriness will help to rectify how the public understands private monuments and represent. they that message the of removal of favor in overnight changed seemingly has monuments Confederate lic public monuments in response to the death of George Floyd in Minneapolis and country. the across tragedies similar other their practices to ensure that they are not ta are not they that ensure to practices their nification of the messaging that is conveyed by private monuments. This involves aresponsiblecommunity disposingstepstowards formerlyofpublic monumentsin and considered manner that does not (particularly monuments result private these in for support public simply signaling avoiding thereby relocating the issue, and and public between line The funding. state through lands) public to adjacent those private interests in these moments is blurred, as is the case with most property in- some initial movement towards removal, this feels qualitatively different and the initial results on the ground as far as the number of monuments that out. this to bear seems have and relocated removed been erate iconography than in the past. To cite but a few non-monument examples, the the examples, non-monument few a but cite To past. the in than iconography erate state of Mississippi seems poised to remove the Confederate battle flag from its of- ficial state flag, C Y 43059-lcb_25-1 Sheet No. 159 Side A 03/17/2021 10:17:28 A 03/17/2021 159 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 159 Side B 03/17/2021 10:17:28 M K C Y (June 20, 2020, 2020, 20, (June EWS N

, NBC , signal a move to a new front in the ongoing conflict: a shift a shift conflict: ongoing the in front a new to a move signal NASCAR Bans Confederate Flags at its Events its at FlagsConfederate BansNASCAR

—demonstrating a public and corporate shift away from these controversial controversial these from away shift corporate and public a —demonstrating Doha Madani, Madani, Doha

332 design-from-state-flag. symbols. This seems to seems This symbols. We this believe will to a ef- have monumentation. positive and private meaningful fect on the landscape. commemorative But how positive and how meaningful will min- by legacies monumental these with grapple communities well how on depend imizing their association and support of landowners and displaying organizations private and monuments, by making responsible decisions about how to dispose of statues. these and relocate racial-justice/2020/06/30/885779855/mississippi-governor-signs-law-removing-confederate- 2:21 PM), https://www.nbcnews.com/news/us-news/nascar-bans-confederate-flags-its-events- n1229506. 302 302 races REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_6_Owley (Do Delete)Not 3/3/2021 8:50 PM

43059-lcb_25-1 Sheet No. 159 Side B 03/17/2021 10:17:28 B 03/17/2021 159 Side Sheet No. 43059-lcb_25-1