MADISON, Wis. (CN) – The Wisconsin Supreme Court heard oral arguments Tuesday in two related cases surrounding a concrete company’s effort to remove Native American burial grounds from its property to expand its quarry operation.
The disputed site is located in Dane County and originally consisted of seven burial mounds that were identified in 1914 on property that has belonged to Wisconsin-based Wingra Redi-Mix since 1982. Two effigies were later discovered and the property was cataloged as a protected burial site in 1991.
The company has been operating a 57-acre sand and gravel pit around the group of burial mounds, which it says has resulted in a dangerous 50-foot mesa in the middle of its quarry.
The Dane County Indian Mounds Identification Project investigated the site in early 1990s and discovered that a bird effigy and part of a tailed mammal effigy still exist but that the other mounds have been destroyed over time.
Twenty years later, Wingra sent a letter to the director of the Wisconsin Historical Society, who is also a member of the state’s Burial Sites Preservation Board, in September 2010 requesting that the mounds be de-cataloged on the basis that there is no definitive evidence that human remains were buried there.
That same month it petitioned for a permit to disturb the mounds to prove the absence of remains. In January 2011, it official petitioned the Burial Sites Preservation Board for the de-cataloging of the site.
The Ho-Chunk Nation has been allowed to intervene in both cases because it holds a valid tribal and religious affiliation with the burial mounds and an interest in preserving the site.
Tuesday’s arguments in the Wisconsin Supreme Court in the first case dealing with the de-cataloging petition focused on whether the site was properly cataloged in 1991, if the matter is time barred and whether Wingra or the Burial Sites Preservation Board bears the burden of providing evidence of the absence of human remains.
Chief Justice Patience Roggensack brought up competing evidence.
“One of the experts of the state indicated something like this, that, maybe 60 some percent of all… effigy mounds that have been examined have burial remains… but only [about] in 10 percent, as I recall the testimony, [were] there not any burial remains,” she said.
Roggensack continued, “I know I read another place in the record that of all effigy mounds at least 80 percent have burial remains. So, [Wingra’s] expert indicated that there were three anomalies on the property and wanted to further explore what those anomalies were, in essence though suggesting that the effigies were not human remains.”
Attorney Bryan Nowicki, on behalf of Wingra, challenged her use of statistics.
“Under the context of the statute, the evidence relating to effigy mounds generally is not an appropriate consideration,” he said. “The evidence needs to relate specifically to the burial site at issue… So there are a lot of different interpretations of the statistics and I think basing any legal determination on manipulable statistics is questionable in the first place.”
Roggensack then asked why Wingra didn’t oppose the cataloging back in the early 1990s.
“The statute puts no limitation on an ability of person to question the cataloging of a site, and in fact the regulation that we’re operating under that allows for removal of the site states that if evidence is ever presented to indicate that there are not human remains, it triggers a hearing process,” Nowicki replied.
During her argument, Assistant Attorney General Maura Whelan challenged each of Nowicki’s points.
“Wingra is now telling this court that it does not believe [an expert’s] report was relevant. This argument was not made before the director. It’s a relevancy argument so that is a forfeited argument,” she said. “But moreover, the evidence about human remains in effigy mounds as a general matter is clearly relevant because it provides an inferential basis for the decision maker to conclude that human remains are probably present in this particular effigy mound.”
Whelan was supported by attorney Howard Shank, who appeared on behalf of the Ho-Chunk Nation and argued that Wingra should have initially asked for a judicial review of the board’s 1991 decision.
“This effigy mound is a cataloged burial site, it was cataloged properly in  and we don’t have the evidence in front of us. That’s why you can’t appeal it,” he said. “It’s 30 years old, it’s stale. There was no appeal at the time, but again, Wingra participated in the process, was informed on the process, and chose not to appeal at the time.”
When asked about the burden of proof by Chief Justice Roggensack, Nowicki noted in his closing arguments that the ultimate decision lies with the director of the Historical Society.
“People can bring removal petitions, but that leaves it up to the director to demonstrate by preponderance of the evidence that it contains human remains,” he said. “In this case, the burden was inappropriately shifted and elevated to require Wingra to establish that there were not human remains, and that’s the problem with the decision.”
The second case centered on Wingra’s petition to disturb three mounds it says are devoid of human remains. Arguments focused on whether the disturbance is necessary and what the possible outcome could be.
Justice Annette Kingsland Ziegler asked Shank, Ho-Chunk Nation’s attorney, how he would go about proving there were human remains if he were the petitioner, saying it “seems virtually impossible to challenge the government.”
“Archeological reports and evidence of an Indian mound is sufficient to catalog a burial site,” Shank said. “It’s not some urgent need that they need to access this property right now.”
“Part of the problem with that logic is it’s the government telling a private land owner what and how they ought to use their land,” Justice Ziegler said.
“I think that’s something you have to take up with the Legislature,” Shank replied.
Ziegler rebutted, “They can categorize it… but for the government to say, ‘Oh gosh, you don’t really need to mine here, you don’t really need this land, you don’t really need to use your land the way you want to use it’ – that’s really what you want to argue?”
“I understand the issue. It’s an incidental injury to real property rights as a result of a legitimate exercise of police powers [that] has been accepted in every state and every federal court for generations,” Shank said.
Arguments in both cases lasted a little over an hour. It is unclear when the Wisconsin Supreme Court will issue a decision in either case.