Study committee helps legislators draft bill to revise law concerning mound preservation
By Tim Wohlers
As guardians of our past, we must protect the things that remain sacred to us. And those in the Native American community hold burial mounds very sacred. So to preserve the sanctity of these holy grounds, the Wisconsin Legislative Council’s study committee on the preservation of burial sites met in Madison on October 5 to discuss possible statute changes that would address issues with the present law.
“The study committee is charged with evaluating current law,” said the committee chair, Representative Amy Loudenbeck. “And we have kind of keyed in on certain areas that we think are worth looking at deeper.”
The Joint Legislative Council formed the study committee earlier this year to help identify problems with the current statute and to gather information that may assist in finding a solution.
“This committee was created by the Joint Legislative Council,” said Senior Staff Attorney Anna Henning, “to study this issue.”
In the interest of fairness, the council has also made sure to include members of the Native American community in the discussion.
“We’re talking about a process to protect burial sites,” said Tribal Heritage Preservation Officer Bill Quackenbush. “Burial sites are very significant to tribes in this area.”
Looking for some professional input to aid in that discussion, the study committee turned to the experts. Thomas Larson, the Senior Vice President of Legal and Public Affairs provided testimony on behalf of the Wisconsin Realtors Association.
“We were asked to come,” Larson said, “to talk a little bit about the current law with respect to the required disclosures for property owners in a real-estate transaction, and then also provide some commentary and feedback on possible ways to improve these disclosures to ensure that prospective buyers are more informed about potential burial sites on their property.”
The testimony proved important, as it revealed that homebuyers may not always receive notice about the existence of a burial mound on their property upon purchasing the land. As a result, issues can arise if the new owner then decides to make changes to his or her property.
“Tribal sites aren’t specifically spelled out in the real-estate condition report,” said Senator Jon Erpenbach. “But they could be possibly listed under a defect.”
However, most reasonable people would not consider a burial mound to be a “defect.” This means that the mound’s existence does not appear on the condition report, and often remains unknown to prospective buyers. Therefore, the real defect lies in the disclosure process.
“We talked a little bit about what happens in a property transaction if there is a burial site,” said Representative Loudenbeck, “and what the difference is between a cataloged and uncatalogued site.”
Currently, burial mound sites fall into one of two categories – cataloged or uncatalogued. The existence of a cataloged burial mound must be noted on the deed to a property.
“It’s recorded directly against the property,” said the president of Wingra Stone Company, Robert Shea. “And it is a permanent encumbrance, certainly.”
Unfortunately, the existence of an uncatalogued burial mound does not get listed on the deed. That leaves disclosure of such information to seller’s discretion. Often, the seller chooses not to disclose this information.
“There’s really no notice,” said the committee vice chair, Representative Robert Brooks. “That’s concerning to me.”
In other words, homebuyers put themselves at the mercy of the seller. They rely on the seller’s integrity in disclosing all known information about the property.
“The property owner is required to only disclose known defects associated with the property,” Larson said. “There is not a specific disclosure requirement for burial sites.”
Consequently, disclosures about the existence of burial mounds have fallen under the honor system. Since the law does not technically require it, sellers might not disclose that an uncatalogued burial mound exists on the property.
“If somebody’s looking at buying a house,” Senator Erpenbach said, “the last thing on their mind is whether or not there’s a tribal burial site there.”
Thus, consumers wish for more transparency in the home-buying process. Although the initial reaction would be to publicize the location of all burial mound sites, that could jeopardize the welfare of these mounds.
“The law requires us to protect all burial sites,” said Ellsworth Brown, Director of the Wisconsin Historical Society. “We’re charged with the preservation of burial sites.”
To minimize the risk of looting, the historical society does not make the location of the mounds public knowledge. Instead, the society safeguards that information.
“We want to make sure that the law can protect burial sites,” Representative Loudenbeck said. “But at the same time, the law is very protective of where the sites are because they’re sacred. So it’s tough.”
Some people believe that making this information more readily available to consumers would alleviate many of the problems that have been encountered.
“Any time you can make that information more apparent for a prospective buyer,” Larson said, “I think it’s a good thing.”
But tribal members disagree. For they wish to protect the burial sites at all costs.
“We need to protect our cultural resources,” said Bill Quackenbush. “It behooves us.”
Having acknowledged the danger in publicizing the location of the mounds, the committee is seeking another viable solution that would allow buyers to become aware of burials sites on property in which they feel interested. One suggested that buyers be directed to the Wisconsin Historical Society if they are concerned about the existence of a burial mound on the property. Then, the historical society could notify buyers of a burial site without releasing that information to the public.
“It’s just letting people make an informed decision,” Representative Loudenbeck said. “More information is not a bad thing to make a decision, so that somebody doesn’t end up purchasing a property that is a known site – but they didn’t know about it.”
Discussion also included the process of de-cataloging a known burial site. Some people believe that landowners should be able “to challenge the existence of human remains in the burial site,” as worded in a previous piece of legislation, in order to remove the site from the historical society’s catalog should no remains be found.
“There’s not really an appeal process,” Brooks said, “to de-catalog a property.”
In an attempt to grant property owners with a cataloged site on their land the right to challenge, Republicans tried to push Assembly Bill 620 during the last legislative session. The bill would have allowed landowners to disturb cataloged burial sites.
“It provide[d] landowners a fair process to prove that human remains are not present on their land,” committee member Robert Shea said, “so they can use their own land.”
Thankfully, the bill failed to receive a vote in the legislature. Had the bill passed, no burial mound would have been protected by the law. All burial sites would have been subject to a “minimal disturbance,” which greatly offends descendants of those buried within the mounds.
“I’m totally against any type of disturbance,” said committee member David Grignon. “If it’s an effigy mound, we know there’s a burial there.”
Obviously, those in the Native American community maintain that no investigation needs to be done on any burial mound. In support of this argument, they highlight the fact that their ancestors built the mounds specifically for those who walked.
“If I’m the seller,” Senator Erpenbach said, “I think it’s awesome that I’ve got a tribal burial mound on the ground. If anything, it might add to the value.”
Sadly, not everyone feels the same. Some landowners argue that the restrictions placed on property with cataloged burial sites infringe upon land usage rights.
“They want to make sure that people’s property rights are protected,” said Representative Loudenbeck. “The people in that kind of camp would like to see more flexibility.”
Clearly, a line needs to be drawn somewhere. Limits must be set on the continued deprivation of Native American rights.
“Many sites are destroyed,” Ellsworth said. “If it is an uncatalogued site [,] there are very few limits or restrictions.”
So to protect their cultural heritage, and the resting place of their ancestors, Native Americans on the study committee are standing up for the rights of their people and lobbying for greater protection of the burial mounds.
“I think we all agree,” Representative Loudenbeck said, “it’s important to preserve burial sites.”
Time will tell if the bill reflects that opinion, though. In hopes of reaching a consensus and finalizing the proposal, the committee will meet twice more at the State Capitol. The next meeting is scheduled for November 10, when the issue gets brought to the table again.
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