Supreme Court tie protects Indian burial site

Native American burial mounds within a quarry outside of Madison will remain protected after a tie vote at the Supreme Court affirmed a Court of Appeals decision.

Justice Daniel Kelly did not participate in the case and the resulting 3-3 deadlock meant the prior decision would stand.

Wingra Stone Quarry wanted to remove and relocate the mounds, protected as burial sites since 1990. The company argued there was no evidence that any human remains were buried there.

Known as the Ward Mound Group, the remaining mounds consist of an effigy of a bird, and a partial dog effigy on about 3 acres. In 2010, Wingra petitioned to remove the mound from the directory of protected sites, lost and appealed the Wisconsin Historical Society director’s denial to the Burial Sites Preservation Board. Wingra lost again and went to court.

But the Court of Appeals ruled that Wingra had not presented enough evidence to overturn the decision of the historical society and its Burial Sites Preservation Board. The Ho-Chunk tribe has also been a party to the ongoing litigation and opposed any disturbance of the mounds.

The only opinion was by Justice Shirley Abrahamson, who objected to the court’s recent practice of not identifying which justices vote to affirm or reverse in ties.

“My view is that the court should consistently report the names and votes of the participating justices in the event of a tie vote,” Abrahamson wrote. “Such a practice advances the important goal of transparency in government and is consistent with every other opinion of this court in which the vote of each participating justice is known to the public.”