Wisconsin Legislature: 222,12

Disposition of Remains Determined to be of Tribal Descent

The bill requires the WHS director, or the division under the procedure for cataloged burial sites, to request that the Wisconsin Inter-Tribal Repatriations Committee or its designee determine the appropriate disposition of any remains and objects that are determined by a qualified archaeologist to be of tribal descent. Current law generally requires the WHS director, or, in some cases, the division, to determine the appropriate disposition of human remains and objects removed from a burial site.

222,1 Section 1. 15.705 (1) (b) of the statutes is amended to read:

15.705 (1) (b) Three members who shall be members of federally recognized Indian tribes or bands in this state, selected from names submitted by the Great Lakes inter-tribal council and the Menominee tribe those tribes or bands. Each such member shall be knowledgeable in the field of tribal preservation planning, history, archaeology, or a related field or shall be an elder, traditional person, or spiritual leader of his or her tribe.

222,2 Section 2. 44.02 (23) of the statutes is amended to read:

44.02 (23) Identify any archaeological site, including contiguous land necessary to protect the site, in this state that is listed in the national register of historic places in Wisconsin or the state register of historic places and that is not cataloged under s. 157.70 (2) (a). Any information collected under this subsection the disclosure of which would be likely to result in the disturbance of an archaeological site is not subject to s. 19.35 (1).

222,3 Section 3. 70.11 (13) of the statutes is amended to read:

70.11 (13) Cemeteries. Land owned by cemetery authorities, as defined in s. 157.061 (2), and used exclusively as public burial grounds and tombs and monuments therein, and privately owned burial lots; land adjoining such burial grounds, owned and occupied exclusively by the cemetery authority for cemetery purposes; personal property owned by any cemetery authority and necessary for the care and management of burial grounds; burial sites and contiguous lands which are cataloged under s. 157.70 (2) (a).

222,4 Section 4. 157.70 (1) (c) of the statutes is amended to read:

157.70 (1) (c) “Cataloged" means recorded under sub. (2) (a), (4) (e) or (6) (c) or s. 157.70 (2) (a), 2015 stats., or s. 157.70 (2) (b), 2015 stats.

222,5 Section 5. 157.70 (1) (em) of the statutes is created to read:

157.70 (1) (em) “Division” means the division of hearings and appeals in the department of administration.

222,6 Section 6. 157.70 (1) (gm) of the statutes is created to read:

157.70 (1) (gm) “Notify” means to communicate by letter or by electronic mail or other electronic means approved by the director.

222,7 Section 7 . 157.70 (2) (a) of the statutes is amended to read:

157.70 (2) (a) Under a special inspection warrant as required under s. 66.0119, identify and record in a catalog Identify burial sites in this state and, for burial sites which that are not dedicated, sufficient contiguous land necessary to protect the burial site from disturbance, and . For any such burial site for which the director determines there is sufficient evidence under sub. (2c), the director shall notify in writing every owner of a the burial site or of such and contiguous land so recorded and identified that the site or land will be recorded in a catalog unless the owner requests a hearing under sub. (2g) (a). The director shall include in the notice the date by which the director intends to record the site or land in the catalog, which shall be no less than 30 days after the date of the notice. If the director's determination is not contested under sub. (2g) (a), the director shall record the site and land so identified in a catalog. If the director's determination is contested under sub. (2g) (a), the director shall record the site and land in the catalog only as subsequently permitted by a final decision of the board, the division, or a court. Whenever a burial site and land are recorded in the catalog under this paragraph, the director shall notify every owner and any county or local historical society in the county where the burial site or the land is located. Any information in the catalog related to the location of any burial site, the disclosure of which would be likely to result in the disturbance of the burial site or the cataloged land contiguous to the burial site, is not subject to s. 19.35 (1). The A notice of a recording in the catalog shall include information about the permit required under sub. (5) and the toll free number the owner may call for more information. The director may, in order to carry out his or her duties under this paragraph, obtain a special inspection warrant as provided in s. 66.0119 if entry to the site has been refused. In this paragraph, “sufficient contiguous land" means land that is within at least 5 10 feet from any part of a burial site, unless the director determines based on the unique characteristics of the land that a shorter distance is sufficient to protect the burial site from disturbance.

222,8 Section 8. 157.70 (2) (b) of the statutes is repealed.

222,9 Section 9. 157.70 (2) (e) of the statutes is amended to read:

157.70 (2) (e) Establish a registry for any person whom the board determines to have an interest in a cataloged burial site or class of cataloged burial sites under sub. (2m) (b) or (c). The registry shall include the name of every person whom the board determines to have an interest in the preservation of a burial site or in providing for the reinterment of the human remains and objects related to burial in the burial site if the burial site is disturbed and identify the burial site in which the person is determined to have an interest. Any information in the registry related to the location of any burial site, the disclosure of which would be likely to result in disturbance of the burial site, is not subject to disclosure under s. 19.35 (1).

222,10 Section 10. 157.70 (2) (f) of the statutes is repealed.

222,11 Section 11 . 157.70 (2) (j) of the statutes is created to read:

157.70 (2) (j) Submit an annual report to the legislature under s. 13.172 (2) containing all of the following:

1. The director's current recommendations under par. (c).

2. The number of burial sites recorded in the catalog at the time the report is prepared.

3. A summary of disturbance activities authorized under sub. (4), including a summary of information submitted to the board in written reports under sub. (4) (f), since the previous report was issued.

4. A summary of applications received under sub. (5) since the previous report was issued, and information regarding the approval or denial of those applications by the director or the division.

5. A summary of appeals to the board under sub. (5) (c) 5. made since the previous report was issued.

6. A summary of any other activities of the board since the previous report was issued.

7. A summary of all violations of this section and all penalties imposed as a result of those violations.

222,12 Section 12. 157.70 (2c) of the statutes is created to read:

157.70 (2c) Relevant evidence for recording in the catalog. (a) In this subsection:

1. “Grave marker" means any surface indication of a burial, including monuments, spirit houses, wooden crosses, or Indian mounds.

2. “Historical documentation" means information from any of the following types of independent sources:

a. Church records.

b. Deeds.

c. Maps.

d. Other written and oral sources.

(b) In determining whether to record burial sites in the catalog under sub. (2) (a), the director shall consider the following types of evidence from any person:

1. Physical evidence, as demonstrated by archaeological or written historical reports showing the presence of human remains or grave markers.

2. Historical documentation.

3. Oral depositions or affidavits.

4. Oral histories.

222,13 Section 13 . 157.70 (2g) of the statutes is created to read:

157.70 (2g) Proceedings to contest recording in the catalog. (a) If an owner wishes to contest a determination by the director under sub. (2) (a), the owner may, prior to the date stated in the notice under sub. (2) (a) that the director will record the burial site and land in the catalog, request a hearing before the board to review the director's determination. If such a request is made, the board shall hold a hearing within 90 days after the date of the request. At the hearing, the director has the burden of proving, using the types of evidence described under sub. (2c) (b), that a burial site is present on the land. If a hearing is requested under this paragraph and the director has not yet physically inspected the land in question as permitted under sub. (2) (a), the director shall do so prior to the hearing. Following the hearing, the board shall issue a decision regarding whether to record the burial site or land in the catalog and, no later than 60 days after the hearing, shall send a copy of its decision to the director and the owner. A hearing held under this paragraph is not a contested case hearing under ch. 227.

(b) Within 30 days after the date of the board's decision under par. (a), the owner shall have the right to a contested case hearing regarding whether the director should record the burial site or land in the catalog. A hearing under this paragraph shall be conducted by the division.

(c) From the time of the notice under sub. (2) (a) that the site or land will be recorded in the catalog unless the owner requests a hearing under par. (a) until all proceedings under this subsection are concluded, notwithstanding sub. (4), no person may conduct any soil disturbance activity on the site or land, except that the proposed activity may be conducted if the director determines that the proposed activity will not disturb the burial site.

222,14 Section 14 . 157.70 (2j) of the statutes is created to read:

157.70 (2j) Removal from catalog. (a) The director shall, on his or her own initiative or in response to a request from the owner or another interested person, propose that land be removed from the catalog if the director determines that no burial site is present on the land because of any of the following:

1. Naturally occurring changes to the landscape.

2. Removal of human remains from the burial site under sub. (4) (c) 3. a. or (5) (c) 3.

3. Newly discovered evidence that, if known at the time of the determination to record in the catalog, and taking into account the types of evidence required to be considered under sub. (2c), would have resulted in a determination not to record the burial site or land in the catalog.

(b) 1. If the director proposes to remove land from the catalog under par. (a), the director shall notify the owner, interested persons listed on the registry under sub. (2) (e), county or local historical societies, the relevant municipality, and, if applicable, the person who submitted an application to have the site recorded in the catalog of the director's proposal to remove the land from the catalog, and invite those persons to submit comments on the proposal. The director shall allow comments for a period of no less than 60 days.

2. Following the expiration of the comment period under subd. 1., the director shall review any comments submitted, make any appropriate modifications in response to those comments, and issue a decision regarding removal of the land from the catalog. The director shall provide notice of his or her decision to the persons notified under subd. 1.

3. Within 30 days after the date of the notice described in subd. 2., a person notified under subd. 1. may appeal the director's decision to the board. The board shall review the director's decision and issue a decision as to whether the land should be removed from the catalog.

4. Within 30 days after the date of the board's decision under subd. 3., a person notified under subd. 1. shall have the right to a contested case hearing regarding whether the land should be removed from the catalog. A hearing under this subdivision shall be conducted by the division.

5. If no appeal of a decision to remove land from the catalog is filed within the period specified under subd. 3., if a decision to remove land from the catalog is upheld by the board following an appeal to the board under subd. 3. and no hearing is requested under subd. 4., or if a decision to remove land from the catalog is upheld by the division following a hearing requested under subd. 4., the director shall immediately do all of the following:

a. Remove the land from the catalog.

b. Submit a request to the register of deeds for the county in which the land is located to record a notice that the land has been removed from the catalog.

222,15 Section 15. 157.70 (2m) (b) of the statutes is amended to read:

157.70 (2m) (b) Determine which Indian tribes in this state have an interest in any cataloged burial site or class of cataloged burial sites and notify the director for entry in the registry under sub. (2) (e).

222,16 Section 16. 157.70 (2m) (c) of the statutes is amended to read:

157.70 (2m) (c) Determine which applicants for entry in the registry under sub. (2p) have an interest in a cataloged burial site or class of cataloged burial sites.

222,17 Section 17. 157.70 (2m) (d) of the statutes is amended to read:

157.70 (2m) (d) As it deems necessary, review determinations of the director and the division of hearings and appeals in the department of administration under sub. (5).

222,18 Section 18. 157.70 (2m) (g) and (h) of the statutes are created to read:

157.70 (2m) (g) Hold hearings and issue decisions under sub. (2g) (a).

(h) Review decisions of the director and issue decisions regarding removal of land from the catalog under sub. (2j) (b) 3.

222,19 Section 19. 157.70 (3) (b) of the statutes is amended to read:

157.70 (3) (b) Upon receipt of any notice under par. (a), the director shall determine if the burial site which is the subject of the notice has been cataloged under sub. (2) (a).

222,20 Section 20. 157.70 (4) (a) of the statutes is amended to read:

157.70 (4) (a) If the director determines that a burial site reported under sub. (3) (a) is not cataloged under sub. (2) (a), he or she shall immediately provide the person who made the report under sub. (3) (a) with confirmation that the report has been received and shall also immediately notify the owner of the burial site of the procedure under this subsection and of the liabilities and penalties which apply for failure to comply with the procedure. If the director deems it appropriate, he or she may give notice to notify the board, and to any person who has or may have an interest in the burial site, that a burial site has been reported under sub. (3).

222,21 Section 21. 157.70 (4) (cm) of the statutes is created to read:

157.70 (4) (cm) The director shall notify an owner under par. (c) 2. or 3., whichever is applicable, within 30 days after confirming receipt of a notification of a disturbance or possible disturbance under sub. (3) (a), except that if the director cannot make a determination under par. (c) 2. or 3. within that period, he or she shall notify the owner that additional time, which may not exceed 30 days, is necessary to make the determination, and include in that notification the reasons he or she needs additional time to make the determination.

222,22 Section 22. 157.70 (4) (d) of the statutes is amended to read:

157.70 (4) (d) If the director determines that an owner has satisfied the requirements under par. (c) 3., he or she shall, within 30 days after making that determination, notify the owner of the owner's right to cause or permit any activity which is in keeping with the owner's action under par. (c) 3.

222,23 Section 23. 157.70 (5) (b) (intro.) and 1. of the statutes are consolidated, renumbered 157.70 (5) (b) 1. and amended to read:

157.70 (5) (b) 1. Any person who intends to cause or permit any activity on a cataloged burial site or on cataloged land contiguous to a cataloged burial site which in any way might disturb the burial site or the land shall: 1. Apply apply to the director for a permit to disturb the burial site or the land. The application shall include the purpose of the disturbance and the names and addresses of any persons notified under subd. 2. The director shall send the applicant the names of any person in the registry with an interest in the burial site.

222,24 Section 24. 157.70 (5) (b) 2. of the statutes is amended to read:

157.70 (5) (b) 2. On a form provided by the The director, shall notify any person whose name the director has sent under subd. 1. shown on the registry under sub. (2) (e) to have an interest in the burial site of the proposed disturbance. The notice to any person under this subdivision shall include information on the notified person's right to a hearing on whether the director should grant a permit to disturb the burial site or the land.

222,25 Section 25. 157.70 (5) (c) 1. of the statutes is amended to read:

157.70 (5) (c) 1. Upon request of the applicant or any person notified under par. (b), or if the director determines that a hearing is necessary, the director shall request the division of hearings and appeals in the department of administration to conduct a hearing on whether a permit should be issued to disturb the burial site or the land which is the subject of the request. If in any part of the hearing the location of a burial site is the subject of the testimony, such part of the hearing shall be conducted in a session closed to the public and the record of such part of the hearing shall be exempt from disclosure under s. 19.35 (1).

222,26 Section 26. 157.70 (5) (c) 2. (intro.) of the statutes is amended to read:

157.70 (5) (c) 2. (intro.) If a hearing is requested or determined to be necessary under subd. 1., the division of hearings and appeals in the department of administration shall conduct a hearing to determine whether the benefits to the permit applicant in disturbing the burial site or the land outweigh the benefits to all other persons shown on the registry under sub. (2) (e) to have an interest in not disturbing the burial site or the land. If the division finds in favor of the applicant, the division shall issue a determination in favor of granting a permit to disturb a burial site or the land which is the subject of the hearing under this paragraph. In making the determination, the division shall consider the interest of the public in addition to the interests of the parties. If any of the following classes of interest are represented in the hearing, the division shall weight the interests in the following order of priority:

222,27 Section 27. 157.70 (5) (c) 2m. of the statutes is amended to read:

157.70 (5) (c) 2m. If the division makes a determination for granting a permit to disturb a burial site which that is the subject of the hearing under this paragraph, the division may, except as provided in subd. 2o., determine the person to whom the human remains and objects related to the burial in the burial site should be transferred for analysis and reinterment or other appropriate disposition when the burial site is disturbed. In making such a determination, the division shall follow the order of priority prescribed in sub. (6) (a).

222,28 Section 28. 157.70 (5) (c) 2o. of the statutes is created to read:

157.70 (5) (c) 2o. If human remains and objects related to the burial in the burial site are determined by a qualified archaeologist approved by the director to be of tribal descent, the division shall request that the Wisconsin Inter-Tribal Repatriations Committee or its designee determine the appropriate disposition of the remains or objects. If the Wisconsin Inter-Tribal Repatriations Committee or its designee declines the director's request, the division shall determine the person to whom the remains and objects should be transferred as otherwise provided in subd. 2m. The Wisconsin Inter-Tribal Repatriations Committee or its designee shall submit to the director a written report of any disposition action taken under this subdivision.

222,29 Section 29. 157.70 (5) (c) 3. of the statutes is amended to read:

157.70 (5) (c) 3. If the determination under subd. 1m. or 2. is for granting a permit to disturb a burial site which is the subject of the hearing under this paragraph, the director shall grant the permit if the owner authorizes the director or a qualified archaeologist approved by the director to excavate the burial site to remove, within a reasonable time, beginning within 30 days of when ground conditions permit, for disposition under sub. (6), any human remains and objects related to the burial in the burial site to be disturbed under the permit.