National Historic Preservation Act May Permit Removal of Confederate Monuments at Gettysburg

Recently debates have been prevalent across the country regarding the removal or preservation of Confederate monuments.  Some places, including government buildings, have featured Confederate flags prominently atop their flag poles for many years.  Similarly, federal buildings and military bases in a number of states are still named for Confederate leaders.  For instance, Mobile, Alabama has a courthouse named after John A. Campbell, the assistant secretary of war for the Confederacy.  Campbell resigned from the U.S. Supreme Court to serve in this role and spent the years following the Civil War fighting against reconstruction.  Alternatively some cities, including New Orleans, Leesburg, and Richmond, have removed Confederate monuments from city properties. 

While some in the debate assert that these marks of the Confederacy offer historical insight, others argue that they are a beacon of systemic racism in a country still struggling to address its history.  A common area of debate centers around Section 106 of the National Historic Preservation Act, 54 U.S.C. § 306108, which provides legal guidance for the handling of historic sites.  Gettysburg National Military Park is one such site whose rules are dictated by Section 106, as it has dozens of monuments dedicated to the Confederacy and its leaders. 

Section 106 requires federal agencies to consider the effects their actions have on historic sites.  To do so, they are required to identify properties with historic values and assess and resolve any adverse effects of their actions on these sites.  Section 106 also requires that an opportunity be given for public comment on the changes to historic sites.  Section 106 appoints the Advisory Council on Historic Preservation to determine whether the section applies, which it does when a federal project potentially impacts historic property.  If there is a potential impact, the Council must decide if there will be any “adverse effects” on the property.

Adverse effects are those that diminish the characteristics qualifying a property for inclusion in the National Register. See 36 C.F.R. § 800.5.  An example of an adverse effect is the “Change of the character of the property’s use or of physical features within the property’s setting that contribute to its historical significance.” 36 C.F.R. § 800.5(2)(iv).  Properties qualify for the National Register when they are generally at least 50 years old, when they still appear similar to how they did in the past, and when they are deemed significant.  In assessing whether a property is significant, the agency must ask if the property is “associated with events, activities, or developments that were important in the past” and “[w]ith the lives of people who were important in the past.”

Remembering the lives lost during the Civil War and the impact that war had on the United States is certainly an important part of our history.  Many of the monuments currently in Gettysburg, however, were not dedicated right after the Civil War, but during the Civil Rights Movement of the 1960s to remember “states’ rights.”  Those opposed to the statues assert that the individuals portrayed in the statues should not be the subjects of a heroic remembrance, but instead recognized as people who contributed to one of the darkest periods of American history.  Others claim the statues demonstrate the values of the slavery-era that are an essential part of American history which aided in forming our cultures today.  Some believe that they show a morphing opinion of the figures leading the Confederate side, as many of the monuments were erected around a hundred years after the war.   

The question of whether these monuments should remain in place seems to boil down to whether they are preserving some kind of historical value, either in terms of the image they are depicting or of the time in which they were erected.   So far, a compromise has been reached to place plaques to put the monuments in context.  Ultimately, the country is forced to face the question of what it considers “important” in qualifying for the National Register, and what the material effects of these monuments are.  The purpose of Section 106 is to protect historic properties and the qualities that make them significant.  Proponents of removal note that most likely, these Confederate monuments should not qualify for the National Register and state that removing them does nothing adverse to preserving sites of historical significance.

With contribution from Angela Mauroni, second year J.D. candidate at the University of Pittsburgh School of Law.