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The Law and American Indian Grave Protection

Wisconsin Laws

WISCONSIN: All human burial sites, including cemeteries and Indian mounds, are protected under state law Section 157.70 Wisconsin Statutes. The laws applies to both public and private lands. Owners of burial sites may receive property tax exemptions. The law is administered by the SHSW Burial Sites Program. Perform a search of the Revisor of Statues Bureau for 157.70.

Summaries follow of burial/archaeological laws yielded through a keyword search for "archaeology" and "burial" on 2001 March 30 at the State Historic Preservation Legislation Database found at the NCSL (National Conference of State Legislatures) web site, that database then updated through 1999. These summaries are reprinted under the Fair Use doctrine of international copyright law which may be found at www4.law.cornell.edu/uscode/17/107.html

http://www.ibsgwatch.org is not responsible for any inaccuracies or timeliness of information.


Code Book: Wisconsin Statutes
Citation: 23.095, 23.79
Section Title: Protection of natural resources: prohibitions; penalties; exceptions; judgment

Summary:

(23.095)(1m) Prohibits a person from damaging or attempting to damage natural resources or archeological features located on state-owned lands under the supervision, management or control of the Department of Natural Resources except as authorized by the department, excluding state-owned lands that are beds of navigable waters. (2m) Prohibits a person from damaging any natural resource or archeological feature located in the Kickapoo Valley Reserve. (3)(b) Declares that any person who damages or attempts to damage an archeological feature under (1m) or (2m) shall forfeit not more than $200. (3)(c) Declares that a person who violates (1m) or (2m) and the violation involves damaging or attempting to damage a natural resource and the violation occurs on land in a state natural area, as defined in s. 23.27(1)(h), shall forfeit not more than $2,000. (3)(d)(1) Declares that a person who violates (1m) or (2m) and the violation involves damaging or attempting to damage an archeological feature shall forfeit not less than $100 nor more than $10,000. (3)(d)(2) Declares that a person who violates (1m) or (2m) and the violation involves intentionally damaging or intentionally attempting to damage an archeological feature shall be fined not more than $10,000 or imprisoned for not more than 9 months or both. (3)(d)(3) Declares that a person who violates (2m) and the violation involves intentionally damaging or attempting to damage an archeological feature in the pursuit of commercial gain shall, in addition to the penalty imposed under (3)(d)(2), be fined an amount two times the gross value gained or the gross loss caused by the violation, whichever is the greater, plus court costs and the costs of investigation and prosecution, reasonably incurred. (4)(b) Exempts any person who damages a natural resource or an archeological feature by the discharge of a hazardous substance from responsibility under this section unless the damage was caused by intent. Allows the court to order the restoration of the archeological feature. (23.79)(3) Enables the court to order restoration of an archeological feature subject to the prohibition under 23.095(1m).

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement

Code Book: Wisconsin Statutes
Citation: 29.921, 29.927, 29.931
Section Title: Department of Natural Resources--enforcement regarding archeology: arrests and warrants; public nuisances; seizures

Summary:

(29.921)(2) Enables the Department of Natural Resources and its wardens to serve warrants and processes or to arrest any person, with or without a warrant, for violation or suspected violation of 44.47 (archeological investigation on land owned by the state or a political subdivision without a permit issued by the State Historical Society) occurring on the bed of any stream or lake. Enables any warden to stop and board any boat, automobile, snowmobile or other vehicle if the warden suspects that there is a violation of 44.47. (29.927)(11) Declares to be a public nuisance any vehicle, remote sensing equipment, navigational device, survey equipment, scuba gear or other equipment or device used in the commission of a crime relating to a submerged cultural resource in violation of 44.47. (29.931)(2)(a) Directs the Department of Natural Resources and its wardens to seize and hold subject to the order of the county court any apparatus, appliance, equipment, vehicle or device that has been declared by 29.03 to be a public nuisance which is being used in he commission of a crime relating to a submerged cultural resource in violation of 44.47. Enables the court to order confiscation of such public nuisance if it is proved that it was used in the commission of a crime relating to a submerged cultural resource within the previous six months.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Underwater Archeological Activity
    • Violation / Penalty / Enforcement

Code Book: Wisconsin Statutes
Citation: 44.47 (3)
Section Title: Field archeology: state archeologist

Summary:

Declares that the state archeologist shall be a qualified archeologist residing in the state and shall be appointed by the director of the State Historical Society. Vests in the state archeologist the following duties: (1) sponsor, engage in and direct fundamental research into the archeology of Wisconsin and encourage and coordinate archeological research and investigation undertaken within the state; (2) cooperate with other state agencies and political subdivisions having authority in areas where archeological sites are located; (3) encourage the preservation of archeological sites on private land; (4) protect objects of archeological significance discovered by field archeology at state sites or discovered during the course of any public construction or demolition work on state sites; (5) cooperate with the historical society, public and private institutions of higher education in the state and other custodians to preserve objects of archeological significance and related data; (6) encourage the publication of archeological reports of archeological research conducted within the state; (7) approve permits for qualified persons to engage in field archeology; and (8) administer the state archeology program under 44.48 (2).

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority

Code Book: Wisconsin Statutes
Citation: 44.47 (4)
Section Title: Field archeology: permits

Summary:

(a) Enables the director of the State Historical Society to issue a permit to a qualified person to engage in field archeology on state sites and sites owned by political subdivisions, with the approval of the state archeologist. Requires the director, before issuing such a permit, to receive the approval of any other state agency or political subdivision which may have jurisdiction over an area described in an application for the permit. Prohibits an agency or political subdivision from withholding such approval without good cause. (b) Encourages a person wishing to excavate a site located on private land also to secure a permit under this section. Requires that person to submit the written consent of the owner with the application for the permit. (c ) Enables the director to waive approval of the state archeologist in an emergency in which objects of archeological interest are found in the course of construction or demolition work, or in other situations where time is of the essence. (d) Enables the director to revoke or suspend a permit upon the recommendation of the state archeologist or the state agency administering the site or the political subdivision which owns the site because of the improper conduct of the permittee, the use of improper or substandard archeological methods or other good cause.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority

Code Book: Wisconsin Statutes
Citation: 44.47 (5)
Section Title: Field archeology: ownership, custody and use of objects and data

Summary:

Reserves title to all objects found and data gathered in field archeology on state sites to the State Historical Society as trustee for the state. Directs that physical possession of such objects or data shall revert to the state from any designated custodian if such custodian should cease to exist or if the director, upon recommendation of the state archeologist, finds that the custodian is not properly caring for such objects or data or is not keeping them conveniently available for study.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Curation / Ownership of Artifacts

Code Book: Wisconsin Statutes
Citation: 44.47 (5m), (5r)
Section Title: Field archeology: submerged cultural resources; sunken logs

Summary:

(5m) Directs the State Historical Society, in consultation with the Department of Natural Resources, to coordinate activities of the state relating to submerged cultural resources. Enables the historical society and the Department of Natural Resources to designate areas of the bed of any stream or lake as bottomland preserves, for the purpose of enhancing preservation, management and public use of any submerged cultural resources within such preserve. Enables the historical society and the Department of Natural Resources to promulgate rules relating to the access, use, stewardship, management, protection and recreational development of bottomland preserves, and the preservation, conservation, curation and display of submerged cultural resources and objects removed from underwater archeological sites. Directs the Submerged Cultural Resources Council to undertake the following duties: (1) make recommendations to the historical society and the Department of Natural Resources regarding the creation and management of bottomland preserves; (2) review, at the request of the state archeologist, applications for archeological permits, and make recommendations regarding issuance of such permits; (3) review, at the request of the Department of Natural Resources, applications for archeological permits for the recovery of abandoned property, including nonhistorical shipwrecks of recreational value, and make recommendations regarding issuance of permits; and (4) advise the historical society and the Department of Natural Resources regarding administration of the program. (5r) Authorizes the director of the State Historical Society to require that a person secure a permit under this section to raise and remove sunken logs under 170.12.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Underwater Archeological Activity

Code Book: Wisconsin Statutes
Citation: 44.47 (6)
Section Title: Field archeology: cooperation of state agencies and political subdivisions

Summary:

Directs all state agencies and political subdivisions whose activities may be affected under this section to cooperate with the State Historical Society and the state archeologist to carry out this section.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority

Code Book: Wisconsin Statutes
Citation: 44.47 (7)
Section Title: Field archeology: penalties

Summary:

(a) Establishes the following penalties for violations relating to archeology under this section: (1) for any person who violates 44.47 (2) or any rules relating to submerged archeological resources promulgated under 44.47 (5m), not less than $100 or more than $500; (2) for any person who intentionally defaces, injures, destroys, displaces or removes any archeological object or data belonging to the state, or intentionally interferes with evidence or work on any state site or site owned by a political subdivision for which a permit has been issued by the director of the State Historical Society, or intentionally violates any other provision of this section or any rules promulgated under 44.47 (5m)(e), not less than $1,000 or more than $5,000; and (3) for any person who removes any archeological object from a state site or site owned by a political subdivision for commercial gain in violation of this section or any rules promulgated under 44.47 (5m)(e), a fine not to exceed twice the gross value gained or twice the gross loss caused by the disturbance, whichever is greater, plus court costs and the costs of investigation and prosecution. (b) Enables the director of the State Historical Society to refuse to issue or renew or to suspend or revoke the permit of any person who has violated this section or any rules promulgated under 44.47 (5m)(e). Enables the director to refuse to name a school or scientific institution as the custodian of objects or data under any permit or agreement if that school or institution has failed in its duty to care for such objects or data or is not keeping them conveniently available to the public.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement

Code Book: Wisconsin Statutes
Citation: 44.47 (8)
Section Title: Field archeology: Archeology Review Board

Summary:

Creates a three-member review board to hear appeals from decisions of the director of the State Historical Society regarding 44.47. Directs that the board should consist of one member each from the Wisconsin archeological society, the Wisconsin archeological survey and the board of curators of the historical society. Directs the review board to submit its recommendations on all appeals to the board of curators of the historical society for final decision.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement

Code Book: Wisconsin Statutes
Citation: 44.47 (9)
Section Title: Field archeology: human burial sites

Summary:

Directs that if a permit is required for field archeology activities at a human burial site under 157.70, then 44.47 applies to any objects not related to the burial except that a permit is not required under 44.47.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Curation / Ownership of Artifacts
    • Permit / Site Investigation Authority

Code Book: Wisconsin Statutes
Citation: 44.47 (1), 44.47 (2)
Section Title: Field archeology: intent; definitions (selected); unlicensed field archeology prohibited

Summary:

Declares that the state reserves to itself the exclusive right and privilege of field archeology on state sites, and may establish regulations for field archeology on sites owned by political subdivisions, in order to protect and preserve archeological and scientific information, matter and objects. Encourages persons practicing field archeology on privately owned land to pursue their field archeology in accordance with this section and strongly discourages the looting of all archeological remains. Encourages persons having knowledge of the location of archeological sites on privately owned land to communicate such information to the state archeologist. Declares that this section is not intended to burden persons who wish to use state public property for recreational and other lawful purposes or to restrict the use of state public property unnecessarily. (1)(b) Defines an "archeological site" as any land or the bed of any stream or lake where there are objects or other evidence of archeological interest, aboriginal mounds and earthworks, ancient burial grounds, prehistoric and historical ruins, Indian mounds, historic and prehistoric watercraft and associated objects, aircraft and other archeological and historical features. (1)(d) Defines "field archeology" as the study of the traces of human culture by means of surveying, digging, sampling, excavating or removing objects. (1)(f) Defines "object" as an article, implement or other item of archeological interest, but excludes from this definition human remains under 157.70 (1)(f), or a sunken log under 170.12. (1)(i) Defines a "submerged cultural resource" as an archeological site or historic property that is located beneath the surface of a lake or stream. (2) Authorizes only the state archeologist and individuals licensed by the director of the State Historical Society to engage in field archeology on any site owned by the state or a political subdivision of the state.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority

Code Book: Wisconsin Statutes
Citation: 157.70 (4)
Section Title: Burial sites preservation: procedure for uncataloged burial sites

Summary:

Requires the director of the State Historical Society to notify the owner of an uncataloged burial site if the director has been notified of the existence of such a site and to notify any persons registered as having an interest in the site. Prohibits the owner of the uncataloged burial site from intentionally disturbing the site if the director determines that any registered person who is not the owner is shown to have a substantial interest in the site. Requires the owner, in such a case, either to change the proposed activity so as not to disturb the site or to authorize the director or a qualified archeologist approved by the director to excavate the site within 30 days to remove and analyze any human remains and burial objects from the site and to provide for disposition of such remains and objects.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority

Code Book: Wisconsin Statutes
Citation: 157.70 (5)
Section Title: Burial sites preservation: procedure for cataloged burial sites

Summary:

Prohibits any person from intentionally causing or permitting the disturbance of a cataloged burial site or the cataloged land contiguous to a cataloged burial site without a permit from the director of the State Historical Society. Enables the director to grant such a permit only if the director has determined in a hearing that the benefits to the permit applicant in disturbing the burial site or the contiguous land outweigh the benefits to all other persons shown on the burial sites registry to have an interest in not disturbing the site. Requires the director to weigh any interests relating to a particular burial site in the following order: direct kinship; cultural, tribal or religious affiliation; a scientific, environmental or educational purpose; historical or esthetic significance of the burial site; land use; a commercial purpose not related to land use which is consistent with the purposes of this section; and any other interest which the director deems to be in the public interest. Enables the applicant to request a hearing before the division of hearings and appeals in the Department of Administration to determine whether a permit should be granted to disturb a cataloged burial site. Enables the division, if it should find in favor of granting such a permit, to determine the person to whom the human remains and burial objects in the burial site should be transferred for analysis and reinterment or other appropriate disposition when the site is disturbed. Enables the director to grant a permit to disturb a cataloged burial site only if the owner of the site authorizes the director or a qualified archeologist approved by the director to excavate the burial site to remove, within a reasonable time, any human remains and burial objects in the burial site to be disturbed under the permit. Enables any person involved in a hearing held to determine whether to grant a permit for the disturbance of a burial site to appeal the determination of the director or the division before the Burial Site Preservation Board.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority

Code Book: Wisconsin Statutes
Citation: 157.70 (6)
Section Title: Burial sites preservation: disposition of human remains removed from burial sites

Summary:

Requires the director of the State Historical Society to notify any person registered with an interest in the analysis and reinterment or appropriate disposition of human remains and burial objects removed from a cataloged or uncataloged burial site if no determination for the appropriate disposition of the remains or objects has been made. Enables the director to transfer the remains and objects to such person for appropriate reinterment or other appropriate disposition upon receipt of written application by any person with such an interest based on the following, in the order of priority stated: direct kinship; a cultural, tribal or religious affiliation; a scientific, environmental or educational purpose; any other interest which the Burial Site Preservation Board deems to be in the public interest. Enables the director to provide for reinterment or other disposition of the human remains or burial objects in an appropriate manner if the director can identify no other person with an interest in reinterring the remains and objects. Requires the director to enter into the burial sites catalog the site of any reinterment under this subsection and to submit a written report to the board of any disposition action taken.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains

Code Book: Wisconsin Statutes
Citation: 157.70 (7)
Section Title: Burial sites preservation: action by attorney general, remedies, penalties

Summary:

Enables the Burial Site Preservation Board to request the attorney general or a county district attorney to aid in any investigation, inspection, hearing or trial made under the provisions of 157.70 and to prosecute all necessary actions for the enforcement of such provisions and for the punishment of violations. Directs the attorney general or district attorney to confer with the board and respond within 30 days after receipt of the request. Establishes the liability of a person who intentionally disturbs either an uncataloged burial site without the authorization of the director of the State Historical Society or a cataloged burial site without a permit issued by the director. Directs that such a person is liable for fees, damages or other relief to any person with an interest in preserving the burial site or in reinterring the human remains and burial objects in the site. Enables any interested person to bring an action for an injunction to prevent disturbance to a burial site or contiguous land. Establishes the following penalties: (a) for a person who fails to report the disturbance of a burial site or of the contiguous land, not less than $100 or more than $1,000; (b) for a person who disturbs an uncataloged burial site without authorization from the director of the State Historical Society, not less than $500 or more than $2,000 if the site is not dedicated and not less than $1,000 or more than $10,000 if the site is dedicated; (c) for an owner who intentionally causes or permits any disturbance of an uncataloged burial site without authorization from the director after receiving notice from the director of the existence of such a site, not less than $1,000 or more than $10,000; (d) for a person who intentionally causes or permits any disturbance of a cataloged burial site or contiguous land without a permit from the director, not less than $1,000 or more than $10,000; and (e) for a person who disturbs any burial site for commercial gain not related to use of the land where the site is located or who disturbs a cataloged burial site for commercial gain related to use of the land where the site is located, a fine not to exceed twice the gross value gained or twice the gross loss caused by the disturbance, whichever is greater, plus investigation and court costs, or imprisonment for not more than one year in the county jail, or both.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement

Code Book: Wisconsin Statutes
Citation: 170.12
Section Title: Sunken logs on submerged state lands

Summary:

(4) Directs the board of commissioners of public lands, upon receipt of an application from a person wishing to raise and remove logs that are resting on submerged lands owned by the state in Lake Michigan, Lake Superior, Star Lake in Vilas County, Boom Lake in Oneida County, Rib Lake in Taylor County or the Fox River, to transmit copies of the application immediately to the State Historical Society, as well as the Department of Natural Resources, for review. Requires the society to notify the board within thirty days whether the proposed project appears to require a permit under 44.47. (6)(g) Authorizes the board to include as a condition of a permit issued under this section any requirements recommended by the society under 44.47(5r) that the board determines should be a condition of the permit. (7) Authorizes the board to renew a permit under this section unless it determines that the permit holder has knowingly or willfully violated the terms, conditions or requirements of the permit, this section, 44.47, or rules promulgated under this section or 44.47. Allows the board to attach conditions or restrictions to a permit if there are environmental or archeological facts affecting the location specified in the permit that were unknown at the time that the original permit was granted. Authorizes the board, upon determination that the permit holder has knowingly or willfully violated the terms, conditions or requirements of the permit or a provision under this section or 44.47, to deny the renewal or to attach conditions or restrictions to the renewal necessary to ensure compliance with the requirements of the original permit. (8m)(a) Requires a holder of a permit issued under this section to do the following: (1) at the written request of the State Historical Society, provide directly to the historical society a sample of company logging marks by sawing off the ends of the logs bearing the marks and by delivering them to the historical society; and (2) allow a historical society designee to observe log recovery activities under the permit. (b) Prohibits a person from doing the following while engaging in log recovery activities pursuant to a permit issued under this section: (1) remove any archeological object, as defined in 44.47(1)(f); and (2) disturb any discernible archeological site, as defined in 44.47(1)(b).

Primary Topic: Archeological Activities

    Secondary Topic:
    • Underwater Archeological Activity

Code Book: Wisconsin Statutes
Citation: 943.01
Section Title: Damage to property: rock art site

Summary:

(2)(f)(1) Defines a "rock art site" as an archeological site that contains paintings, carvings or other deliberate modifications of an immobile rock surface, such as a cave, overhang, boulder or bluff face, to produce symbols, stories, messages, designs or pictures, and may include artifacts and other cultural items, modified soils, and bone and other objects of archeological interest that are located adjacent to the paintings, carvings or other deliberate rock surface modifications. (2) Declares that a person is guilty of a Class D felony who damages any physical property of another without the person's consent if that property is a rock art site, any portion of a rock art site or any object that is part of a rock art site, if the rock art site is listed in the national register of historic places in Wisconsin or the state register of historic places.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement

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Wisconsin government, preservation and state archaeological resource links.



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