Cultural Resources Best Practices Q & A

Answer: Finding artifacts usually means that you have a prehistoric or historic occupation area, known as an archeological site.  In most cases, artifacts and sites found on private property belong to the deeded landowner. The exception to private ownership are human remains and artifacts associated with burials (answer 5). If you want to find out more about the artifact or site on your land, contact the State Archaeologist John Brohihan (608 264-6496 [email protected])  (see included definitions).

Answer:  The best way to keep the artifacts and site information intact for future generations would be to produce a written record of the discovery. This record would include the location, context and date of discovery, as well as the person and circumstances of the discovery. Photographs of the site area and artifacts are very important. When all your information is collected, store the artifact in a protected space and consider reporting the site to the State Archaeologist. The state keeps a confidential database of sites and their locations and contents, in case there is a future development (such as a highway) planned in the area. Some sites are important enough on their own or as part of a group of sites to be included in the National Register of Historic Places. The State Archaeologist’s office administers a tax exemption program for these significant sites. For more information on the tax exemption program, see the Wisconsin Historical Society website. Most sites are lost because artifacts are removed and stored away with no information on where and when they were found.

Answer: Yes. The true value of an artifact however is not the artifact alone but in its context. Follow the suggested best practices noted above (Answer 2) to document your discovery.

Answer: Only if you grant permission as the deeded landowner can others explore your property for artifacts. Best practice suggests that you do so in writing and require everyone to follow the standards cited above (Answer 2).  Persons taking artifacts from your property without permission are both trespassing and stealing (looting).

Answer: The vast majority of artifacts found in the Manitowish Waters area are not associated with known burials, although, the context of an artifact can be difficult to determine. All cemeteries, marked and unmarked, burial mounds, and individual graves (including their contents) are protected by the state Burial Sites Preservation Act (Wis.Stat. 157.70) (see https://www.wisconsinhistory.org/Records/Article/CS3122). This statute was made into law in 1989 because so many burials were being destroyed. It is important to note that burials are treated with respect through this law, which is why disturbance or destruction of burial sites without working with the Wisconsin Historical Society is punishable by hefty fines.

If you find human remains exposed on your property, please call the local police or county sheriff, as the remains may be part of an ongoing investigation.  If it is determined that the remains are ancient or historic, or you suspect that you have a family cemetery or grave from a previous owner, or need help regarding archaeological analysis contact, contact State Archaeologist John Brohihan (608 264-6496 [email protected]) or any of the archaeological consultants qualified to excavate human burials found at https://www.wisconsinhistory.org/Records/Article/CS15302.

Private property rights of burial site owners are documented by the Wisconsin Historical Society at https://www.wisconsinhistory.org/Records/Article/CS3123.

Answer:   In most cases, you can develop your private property without any special permit regarding cultural resources, archaeological sites or artifacts (except in the case of burials).  The Wisconsin State Historical Society has a comprehensive webpage to explain best practices for preserving sites on all properties https://www.wisconsinhistory.org/Records/Article/CS4050.  The State Archaeologist and other archaeologists can assist you in recovering information from your site before the area is developed, most of the time without cost. Recovering artifacts with context and detailed records as described above (Answer 2), before disturbing the site would be best practice. 

Answer: Deeded owner(s) of private property control their property to the original water line/shore.  Impounded waterways (like Manitowish Waters) are treated differently, and private property rights extend to the original/pre-dam water levels.  That is not true of all impoundments, however. Reservoirs managed for hydroelectric power have shoreline property rights.

River properties are treated differently from lake property, and private property owners’ rights extend to the middle of the river. Manitowish Chain property owners can use the following table or contact the Manitowish Water Historical Society for help in determining the pre-dam water level on their lake.  Importantly, Sturgeon and Benson Lakes are part of the chain but NOT impounded by the dam, and deeded property rights extend to current shoreline.

 Source: Rare 1878 map of Rest Lake Dam associated with the James Allen Survey: map is displayed at the Koller Library in Manitowish Waters, Wisconsin. https://mwhistory.org/2016/wp-content/uploads/2017/01/Secretary-of-War-1880-Rest-Lake-Dam.pdf

Answer: For a narrow example, if you discover a stone/copper tool, pottery, waste pieces from tool manufacture, fur trade or logging items, you have discovered an archaeological site. Further, both state and federal law defines the term “archaeological site”.  In Wis.Stat. 44.40 an “archaeological site” is defined as “any land or the bed of any stream or lake where there are objects or other evidence of archaeological interest, aboriginal mounds and earthworks, ancient burial grounds, prehistoric and historical ruins, Indian mounds, historic and prehistoric watercraft and associated objects, aircraft and other archaeological and historical features.”

The National Historic Preservation Act of 1966 as amended and its regulations define “historic property”, including archaeological sites, as "any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion on the National Register".

Both state and federal laws take into consideration preservation of artifacts and sites 50 years or older. That means that every year more sites come under consideration. Not all sites and artifacts are significant or eligible for the National Register. However, both state and federal law have procedures to determine significance for sites on their lands. There are no such restrictions for private lands, except for burial sites. However, as stated above (Answer 2), recording information for non-burial artifacts and sites found on private property is highly recommended. Assistance is available from the State Archaeologist and other local archaeologists.

            Answer: There are two types of public lands: state and federal. State lands are administered by a variety of state agencies (such as the Department of Natural Resources, Board of Commissioners of Public Lands and Department of Transportation), counties, townships and municipal. The Wisconsin Historical Society oversees the protection of archaeological sites and artifacts on these public lands through Wis. Stat. 44.40 (https://www.wisconsinhistory.org/Records/Article/CS2858).

Only professional archaeologists, with a permit from the State Archaeologist, can conduct investigations on state, county, township or municipal public lands. All artifacts found during these investigations are curated at a facility approved by the State Archaeologist. There are no legal private collections of artifacts taken from these lands. Anyone who removes artifacts from state, county, township or municipal lands or damages or destroys an archaeological site without a permit is subject to fines and/or imprisonment because the sites and artifacts on public lands are to be preserved for all the people of Wisconsin. Burial sites are protected by Wis.Stat. 157.70 as explained above (Answer 5).

Federal lands in Wisconsin include those administered by the USDA Forest Service, the National Park Service, the Bureau of Land Management or other federal agency. The National Historic Preservation Act of 1966 as amended, its regulations, and the Archaeological Resources Protection Act are the major laws that govern protection of sites and artifacts on federal lands. As with state law, only professional archaeologists with permits issued from the respective federal agency, such as the Forest Service, can conduct investigations on federal lands. All artifacts are curated with the agency. Again, there are no legal private collections of artifacts taken from federal lands. And as with state law, anyone who removes artifacts from federal lands or damages or destroys an archaeological site without a permit is subject to fines, confiscation of property and/or imprisonment because the sites and artifacts on these lands are to be preserved for all the people of United States. All cemeteries, marked and unmarked, mounds, graves and inadvertent discoveries of human remains are covered under the two laws listed above and the Native American Graves Protection and Repatriation Act. For a list of the federal laws and other information on national historic preservation, see https://www.nps.gov/subjects/historicpreservation/laws.htm

Answer: It is illegal to remove artifacts from any state or federal public land, including shorelines and beaches adjacent to public boat landings and other recreational areas.  It is also illegal to metal detect on state and federal public lands without specific permission.  In addition, all lake beds are administered by the DNR and sites and artifacts there are protected by Wis.Stat. 44.40. River beds adjacent to state and federal lands are protected by their respective agencies.  These protections extend to artifacts, historic resources and submerged logs.

If you should see an exposed artifact, leave the artifact in place and cover it to avoid damage or looting. For DNR lands, contact the DNR Archaeologist Richard Kubicek 608-445-8395.  For all other state [email protected]., county, township and city lands, contact State Archaeologist John Brohihan 608 264-6496 [email protected]. For federal lands, contact the nearest agency office.

Answer: Contact State Archaeologist John Brohihan (608 264-6496 [email protected]) or for DNR properties contact DNR Archaeologist Richard Kubicek 608-445-8395 [email protected] with identifying information and location of the suspected looting. If burials sites, including mounds, on state, county, township or municipal lands have suspected looting, call the county sheriff.

Sadly, the Manitowish Waters area has lost significant archaeological and cultural resources, mostly due to ignorance, but in some cases looters have targeted our community to illegally obtain artifacts for personal gain.

Answer: Metal detecting is a popular sport, usually conducted on shorelines and beaches, looking for lost jewelry and coins. On private property, deeded land owners and those who have permission from deeded land owners can metal detect as they wish.  It is important to note however that metal detecting does irreparable damage to archaeological sites. The tradition of metal detecting in the northwoods has been very problematic for those who prize historic preservation. If metal detecting is conducted on an archaeological site on private property, with permission of the landowner, it is highly recommended that the recording method explained above (Answer 2)  is used.

Metal detecting on DNR land is strictly regulated and can be conducted only with a permit. The activity is strictly limited to recovering the lost personal property listed on the DNR permit for a limited time period  http://dnr.wi.gov/files/pdf/forms/9400/9400-239.pdf.  Metal detecting on DNR property without a permit is a violation.  The DNR restricts all metal detecting to May 1 through October 15 (from either 7:00 a.m. until 10:00 a.m. or from 6:00 p.m. until 9:00 p.m.) The same laws apply to all lakes and rivers adjacent to public lands that are controlled by the state, and persons can only metal detect with a DNR permit to recover lost personal items.  http://dnr.wi.gov/files/pdf/forms/9400/9400-239.pdf

Contact your local county, township and municipal offices for metal detecting regulations.

Metal detecting on federal lands is regulated by each agency. Contact the local agency office or the historic preservation office for regulations and permits.

Much of the metal detecting in the northwoods is done by collectors who seek copper artifacts for their personal collection, or to sell for personal gain.  Unless these artifacts are collected with written permission from the private deeded landowner, detecting should be considered illegal.  Currently, persons selling artifacts have been removing them under questionable circumstances making the detecting practice more troublesome.

In addition to illegal artifact removal, many collectors are selling modern made “artifacts” as ancient. Stone tools sold today are often made by modern flintknappers and even copper “artifacts” are currently being manufactured and sold as historically authentic.  In each case, the producers of fraudulent artifacts use sophisticated scientific applications to make the modern “artifacts” appear to be ancient.

Answer: For DNR lands, contact DNR Archaeologist Richard Kubicek 608-445-8395 [email protected]  and for all other state, county, township and municipal lands, Contact State Archaeologist John Brohihan (608 264-6496 [email protected])  Be prepared with any identifying information and location of the questionable activity.

Answer: There are 11 tribes with reservations or other types of land holdings within the state of Wisconsin. The basic protection of archaeological sites and cultural resources are the federal laws that protect federal public lands. It is important to note, however, that tribal lands are not public and not under state jurisdiction. Each tribe has its own Tribal Historic Preservation Office (THPO) which is the equivalent of the State Historic Preservation Office (SHPO). In addition, each tribe has its own tribal codes that enhance the federal historic preservation law. An example of this is Chapter 66 of the Lac du Flambeau Band of Lake Superior Chippewa Indians Tribal Code. https://www.ldftribe.com/uploads/files/Court-Ordinances/CHAP66%20Protection%20and%20Management%20of%20Archaeology,%20Historical,%20and%20Cultural%20Resources.pdf.

To find out more about each tribe’s historic preservation requirements, it is recommended that you contact the Tribal Historic Preservation Office of the tribe you wish to visit. The Wisconsin Historical Society website keeps an updated list of the THPOs and their contact information (https://www.wisconsinhistory.org/Records/Article/CS3145).

The federal law prohibiting removal of artifacts, conducting archaeological investigations or damaging archaeological sites applies to tribal lands as well. Permits are issued by the Bureau of Indian Affairs with an approval letter from the tribe. Again, there are no legal collections of artifacts from tribal lands. Curation facilities are determined by each tribe for artifacts found during permitted investigations.  Burial sites are protected by the federal laws listed above for federal lands. Removal of artifacts and/or damage to sites is punishable by fines, confiscation of property and/or imprisonment.

To complicate the situation even more, Ojibwe reservations are checkerboarded, which means that they contain private land holdings strewn among the tribal lands. The private lands within the reservation boundaries are treated like private lands outside the boundaries. Protection of burials on the private lands is governed by the state burial sites preservation law, however the Wisconsin Historical Society defers to the tribe’s wishes in disposition since the burials are most likely native.

Answer: Possibly, depending on your intent. Hunting, gathering and land or vegetative disturbance of any kind is regulated. https://www.ldftribe.com/uploads/files/Court-Ordinances/CHAP21%20Conservation%20Code%20-%20Nonmembers.pdf. As stated above, federal historic preservation law and individual tribal code regulates treatment of archaeological sites, artifacts and other cultural resources. Contact the Tribal Historic Preservation Office or the Tribal Natural Resources Office with questions about access. Contact information is located on the tribal website.

Below is an excerpt from Native Wisconsin that describes best practices regarding visiting tribal areas like Lac Du Flambeau.  Importantly, theses best practices were published by representatives of Lac Du Flambeau.

https://www.travelwisconsin.com/pdf/2010-natow.pdf. Page 17. Visited 12-21-17.

Answer: The DOT and DNR follow different procedures based on the oversight of their projects. The oversight of DOT projects and some of their funding comes from the Federal Highways Department. As such, DOT is required to follow the National Environmental Policy Act of 1969 and the National Historic Preservation Act of 1966. This includes a process of project review, called Section 106, that identifies archaeological sites and historic structures within the project area, and assesses the effect of the project on these sites (http://www.achp.gov/106summary.html).  The DOT pays for all of the Section 106 process, including any mitigation of adverse effects that may come from the project implementation. As part of the NEPA process, public comment and comment from historical societies is an integral part of the evaluation. In addition, DOT is required to consult with the Native American tribes. This review process is required for all roads that are funded and reviewed by DOT, including county, township and municipal roads (http://wisconsindot.gov/Pages/doing-bus/eng-consultants/cnslt-rsrces/environment/cultural-resources.aspx).

The DNR is a state agency regulated and funded by the state. Each DNR property as well as the main office itself is required to develop a master plan for project review for all projects on the land it administers as well as the environmental projects it oversees. State law determines the process by which project reviews are conducted. Wis.Stat. 44.40 and the federal project review process are similar except for three important points. State law does not require an archaeological investigation to locate archaeological sites within the project area, just the assessment of effects on already known sites, if any. Also there is no requirement for public comment or tribal consultation on DNR projects.  And for projects requiring storm water and/or other permits, the commercial or private property owner is required to pay for the archaeological review if the DNR archaeologist determines one is necessary. For clarifications for procedures contact: Teague Prichard State lands specialist State forest program 608-264-8883, or Diane Brusoe 608 267-7469.

Both DOT and DNR are required to work with the Wisconsin Historical Society SHPO, which determines whether the procedures outlined by federal law for DOT or state law for DNR have been completed satisfactorily.

Most archeological sites are located on private land, and require permission from the deeded landowner to visit. Some sites are open to the public such as the Lake Tomahawk Indian Mound State Park http://www.wisconsinmounds.com/LakeTomahawkMounds.html.  The most important thing to remember is to treat the sites with respect, regardless of landowner. Treat burial sites and sacred sites the same as you would a church cemetery or a cathedral. Many Native American sacred sites are still used by the descendants who first placed them, as many of our old churches are used by the descendants of those who built them.

Here are additional best practices from Washington State to guide proper behavior at both public and private cultural sites https://dahp.wa.gov/archaeology/site-stewardship.

Important terms and definitions.

            Archaeology is the study of past cultures and the people who created them. The study includes searching archives, conducting oral interviews, documenting surface remains of the occupation, and sometimes careful excavation of an area of the site.

Archaeological Site is defined by both state and federal law.  In Wis.Stat. 44.40 an “archaeological site” is defined as “any land or the bed of any stream or lake where there are objects or other evidence of archaeological interest, aboriginal mounds and earthworks, ancient burial grounds, prehistoric and historical ruins, Indian mounds, historic and prehistoric watercraft and associated objects, aircraft and other archaeological and historical features.”

The National Historic Preservation Act of 1966 as amended and its regulations define “historic property”, including archaeological sites, as "any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion on the National Register".

Both state and federal laws take into consideration preservation of artifacts and sites 50 years or older. That means that every year more sites come under consideration. Both state and federal law have procedures to determine the significance for sites on their lands.

Artifacts are what remains of the activities people conducted on the site and left behind. Studying the artifacts is one of the ways that archaeologists can identify these activities and tell the story of what happened at the site. Removing artifacts leaves a hole in that story that cannot be closed.

            Burials are defined in Wis.Stat. 157.70 as any place where people are buried which includes but is not limited to cemeteries containing marked and/or unmarked graves, prehistoric mounds, and individual graves. Wisconsin is unique in having a comprehensive Burial Sites Protection law.

            Cultural resources is a term that is interchangeable with historic properties and includes more than just archaeological resources. In 2010 the U.S. Forest Service defined cultural resources as, “An object or definite location of human activity, occupation, or use identifiable through field survey, historical documentation, or oral evidence. Cultural resources are prehistoric, historic, archaeological, or architectural sites, structures, places, or objects and traditional cultural properties.” Some examples are artifacts, culturally modified trees, fossilized pollens, oral histories, archaeological sites, logging camps, maple sugar extraction sites, railroads, canals, buildings, objects, earthworks, middens, post molds, carbonized materials, etc.  By law, cultural resources are 50 years old or more and are considered potentially significant and worthy of consideration for special preservation.

            Deeded land (also known as private land or fee land) is land that is legally held by a person who has registered the deed with the county Register of Deeds. Permission to access private land can only be extended by the legal landowner. When granting access to others for the purpose of site identification and collection of artifacts, permission should be done in writing by the landowner or their designee. It is important to communicate the terms of access to all renters, friends and extended family in order to reduce the chance of looting or misunderstanding as to whom has permission and what the permission is granted for.

            DNR Archeologist is a professional archaeologist employed by the agency to oversee the protection of cultural resources on state land: “The Department of Natural Resources is the state's single largest owner of archaeological sites, historic structures and other important cultural resources, including burial areas. These resources span the time from the arrival in the region of Paleoindian hunters to the very recent historic period. Located within our state parks, forests, natural areas, riverway and elsewhere, DNR manages these resources - physical records of our common past - on behalf of the people of Wisconsin.”  http://dnr.wi.gov/topic/Lands/CulturalRes/.

The current DNR archaeologist is Mark Dudzik. His contact information is 414 263-8617 [email protected]

                        Lac Du Flambeau Lac Du Flambeau has been one of the largest permanent Ojibwa communities in the Lake Superior Region since 1745. Treaties from 1837, 1842, 1848 and 1854 codified the ceding of Ojibwa land to the federal government in exchange for money, goods and services. The Ojibwe agreed to move to the lands they did not cede, and they also did not give up but reserved the right to hunt, fish and gather not only on reservation lands but also throughout the territory ceded to the federal government. The 1854 Treaty moved many of the surrounding Ojibwa communities from the ceded territory onto the current Lac Du Flambeau Reservation. In 1900 Lac Du Flambeau was recognized as a township and in 1927 the Township of Spider Lake (later Manitowish Waters) broke off to create a separate community.  Manitowish Waters shares a border with Lac Du Flambeau along Little Trout Lake, Wild Rice Lake and the Trout River. Lac Du Flambeau is a sovereign nation with a tribal government that prizes cultural preservation.  

Additional information on Lac Du Flambeau can be found at the following websites: http://www.glitc.org/tribes/lacduflambeau

Community Information

https://www.ldftribe.com/index.php

State Archaeologist is a professional archaeologist employed by the Wisconsin Historical Society. The current State Archaeologist is John Brohihan (608 264-6496 [email protected]) The duties of the State Archaeologist can be found in Wis. Stat. 44.47 (3). https://docs.legis.wisconsin.gov/document/statutes/44.40 

State Historic Preservation Officer (SHPO) is also located in the Wisconsin Historical Society and oversees the historic preservation program. Currently the SHPO is Jim Draeger (608-264-6493 [email protected] ) Information on the program can be found in https://www.wisconsinhistory.org/Records/Article/CS3557

Tribal Historic Preservation Officer (THPO) is located in the Historic Boys Dormitory on HWY 47 on the Lac du Flambeau reservation. The current THPO is Melinda J. Young (715 588-2139
[email protected])

“The Lac du Flambeau Tribal Historic Preservation Office was established for the purpose of protecting and regulating cultural and historical resources in Lac du Flambeau. The THPO is also responsible for training and educating the community on cultural, historical and archaeological topics. The program provides training and education in archaeological survey techniques and the site identification for tribal members, tribal staff and youth.” https://www.ldftribe.com/departments/31/Tribal_Operations/Tribal_Historic_Preservation_Office.html