One of about 25 Indian mounds is shown at Lizard Mound County Park near West Bend. Landowners could excavate and possibly develop some of the surviving Indian mounds of Wisconsin — many dating back more than a millennium, under legislation by two lawmakers. Credit: Mark Hoffman

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Madison— Landowners could excavate and possibly develop some of the surviving Indian mounds of Wisconsin — many dating back more than a millennium — under legislation by two lawmakers.

The bill from Sen. Chris Kapenga (R-Delafield) and Rep. Robert Brooks (R-Saukville) would shift the balance of state law more toward private property rights and away from the preservation of one of the state's unusual features.

The earthen burial mounds, shaped like bears, deer, panthers, birds and people, can stretch hundreds of feet in length or width and are one of the most enduring forms of art in the state. It's been estimated that 80% were plowed under or otherwise destroyed to make way for farms and buildings, and those remaining sites that are cataloged are protected from disturbance by state law.

The proposal has alarmed Robert Birmingham, the author of two books on the state's Indian mounds. Birmingham, a professor at the University of Wisconsin-Waukesha and a former state archaeologist, called the mounds a "world archaeological wonder."

"It is unparalleled in that we have the mounds, some of them in awesome proportions. ... Having such an explicit monumental architecture (of early natives) that reflects their religious beliefs is amazing," Birmingham said.

The draft bill on the mounds has already won some powerful backers, including the Wisconsin Manufacturers & Commerce and the Wisconsin Builders Association. It arises in part from a case involving Wingra Stone and Redi-Mix, which owns a quarry north of McFarland where an effigy mound has blocked the extraction of materials around and below it.

Under the draft measure, the Wisconsin Historical Society would be required to give property owners a permit allowing them to investigate at their own expense whether their mounds contain burial remains, either through an archaeological dig or through ground-penetrating radar. If the mounds contained no remains, landowners could use their property however they wished.

"While (the draft bill) will maintain the (Historical Society) mission to protect human burial sites and preserve history for future generations, it will also make common-sense reforms to current law to help ensure private property is not wrongly placed on the SHS burial site catalog and essentially frozen from use," Kapenga and Brooks wrote in a memo to other lawmakers.

The leaders of the Ho-Chunk Nation count the mound builders as ancestors of their tribe and they have launched a website to counter the bill as well as planned a rally at the Capitol on Jan. 12.

"These are sacred sites and for many of them it would be like churches and mosques are (for other believers). This is how we would consider them," said tribal president Wilfred Cleveland.

Cleveland said tribal officials plan to meet soon with Kapenga about the bill. For his part, Kapenga said in an email he would hold off on commenting more about his legislation until after that meeting.

Effigy mounds in southern Wisconsin and surrounding states date to the time that scholars call the Late Woodland Period, which stretched from 700 to 1100. They were often built in clusters and some can still be found in Milwaukee suburbs and in Madison not far from the Capitol. Some are geometric shapes while others clearly depict spirits or birds with up to 600-foot wingspans, nearly equal to the length of two football fields. Students across Wisconsin learn about them in state history classes.

Birmingham said human remains have been found in about 90% of the mounds that have been excavated and already a majority of the thousands of mounds that once dotted the southern part of the state have been cleared to make way for development.

Cleveland said that in some cases human remains in a mound may have decomposed. Either way, his tribe is opposed to disturbing not only the burial sites but what they represent.

Pointing to bear mounds, Cleveland said he was a member of his tribe's bear clan, which traditionally had duties similar to those of modern-day police.

"I see the bear there. I see the foresight and vision that our ancestors had and it's working up to this day," he said of the ties between the mounds and tribal ways.

Increase Lapham, often considered Wisconsin's first scientist, helped survey and study the mounds in the 19th century and published his findings with the Smithsonian Institution.

Under current law, the state will take action at times to protect recognized effigy mounds, such as an occasion in January 2008 when Pabst Farms developers were ordered to repair and better protect panther-shaped mounds near a large construction site after work crews damaged them.

That law is at the center of a legal fight involving Wingra Stone. The company has challenged the site's legal protections in Dane County Circuit Court and won, but the Historical Society and the Ho-Chunk Nation have appealed the ruling.

Wingra president Bob Shea, who could not be reached for comment, is a frequent contributor to mostly Republican officials, but not to the main lawmakers who are offering the legislation.

The bill has the potential to affect more mounds than those at issue with Wingra Stone, however. Its provisions would affect every burial mound that has been cataloged by the state as well as those that may turn up in the future.

Going forward, the Historical Society would also only be able to catalog and protect effigy mound sites that can be demonstrated to contain human remains.