The Unconsenting Stratum

TAM-MDN.3-03 · The Midden · The Approximate Mind

In the spring of 1971, a highway crew widening a road near Glenwood, Iowa, cut into an unmarked pioneer cemetery and uncovered twenty-eight burials. Twenty-six of the dead were white settlers, and they were treated the way the dead of one’s own are treated: gathered up, given a service, reburied nearby. The other two, a Native woman and her child, identified by the trade goods buried with them, were boxed and sent to the state archaeologist’s office for study.

Maria Pearson heard about it at her own dinner table. She was Yankton Sioux, born Hai-Mecha Eunka, Running Moccasins, raised in South Dakota and settled in Iowa, and her husband was an engineer for the very highway department whose crew had made the cut; he came home and told her, knowing what it would mean to her, because her mother-in-law had spent years teaching her the traditions and the teaching had taken. Pearson put on her regalia and drove to Des Moines and sat down in the anteroom of the governor’s office, and when Governor Ray finally asked what he could do for her, she said: you can give me back my people’s bones, and you can quit digging them up.

The sentence took sixteen years to become law and then nineteen more to become national. Iowa passed the first statute in the country protecting ancient burials in 1976, largely because Pearson would not go away; in 1990 the Congress passed the Native American Graves Protection and Repatriation Act, and the discipline that had filled its museum drawers with other people’s ancestors for a century was required, at last, to inventory them, name the communities they came from, and give them back when asked. Archaeologists call Pearson the founding mother of the law. Some said at the time that the law would end American archaeology. What it ended was a particular innocence: the working assumption that the dead in the ground are material, and that excavation is a relation between a scientist and an object rather than between the living and the living.

This series has arrived at the essay where that assumption has to be examined for the new sites, and the examination cannot be gentle, because the new sites are not analogous to the burials. They are worse positioned in some ways and better in others, and the ways do not cancel.

The people in the column

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Restate what the deposit is, one more time, with the emphasis this arc requires. The column is made of persons. Not of information about persons, though it is that too, but of the persons’ own productions: their prose, their arguments, their fan fiction and complaint threads, and beneath those, in the register The Ear That Answers named from inside, the language never meant to be social at all, the half-spelled fears typed into small rectangles at three in the morning, the questions phrased in the third person so that distance could be smuggled in through grammar. The harvest took the composed and the unguarded at the same rate, which is what indiscriminate means, and the honesty this series has praised in the heap is, seen from this essay, the same property under a colder name: nothing was withheld, because no one was asked.

The Amber Question established that the registers of the dead are already in the column and speakable. The Backward Ear established that the instrument now reaches deliberately for the deposits of the dead. Put the two beside the practice this arc describes and the situation completes itself: excavating these strata re-voices people. The trench draws answers up through the column, and the answers are composites of the harvested, the dead and the living and the never-asked, made to speak again in aggregate, on subjects of the asker’s choosing, in something like their own words. Archaeology disturbs remains. This practice performs them.

The harvest took what people said. The excavation makes them say more.

The never-asked deserve their own sentence, because the phrase covers two different injuries. Some of the harvested are dead and could not be asked. Most are alive and simply were not: the terms ran to thousands of words, the box was checked, the scraping fell outside any box at all, and the doctrine that public posting is consent has been examined by research ethics and found to be what it looks like, a convenience. The stratum is unconsenting in both tenses. It holds the dead, who are past asking, and the living, who were skipped.

The poor fit of the nearest precedent

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The instinct, facing this, is to reach for the structure Pearson built, and the reach is right; her law is the only large, tested framework humanity has for the ethics of holding and studying the involuntary remains of identifiable people. The reach is right and the fit is poor, and the essay owes the reader the poorness in detail, because the gaps are the specification for whatever would actually work.

The law runs on lineage. Its whole mechanism is the tie between remains and a living community with standing: cultural affiliation is established, the affiliated take precedence, the object goes home. The column dissolves lineage by construction. The Frequency Column established that the deposit keeps proportion and discards persons; the composite that answers a prompt has no one inside it to be affiliated, and a contribution that entered as a rounding error in a statistic cannot be traced, claimed, or severed. The law’s first question, whose ancestor is this, has no answer in the weights, not because the records are lost but because the relation was never stored.

The law runs on return. Repatriation is its remedy: the object leaves the drawer and goes back, and the going back is possible because the object is singular and located. Weights are neither. They are copied, distilled, fine-tuned into descendants, cached in a hundred places; removing a person’s material from a trained model is not an act of return but an open research problem, and deleting a whole model destroys the involuntary archive of millions in order to answer the objection of one. The remedy that made Pearson’s framework real, the box actually leaving the building, has no equivalent here. There is nothing to hand back and nowhere it could be handed.

And the law runs on the grave’s specialness. It could be passed, against the resistance it faced, because human remains hold a status that even the most acquisitive science conceded in the end; the fight was over whose rules applied to bones, not over whether bones were different from pots. The stratum’s contents arrive with no such standing. Prose is property, if it is anything, governed by copyright and terms of service, and the unguarded query is not even that, a data point in a log, covered by a privacy policy amendable at will. The material this essay has called the most intimate register humans ever produced enters the law as its least protected category.

Three mechanisms, three misses. What survives the transfer is not the machinery but the two things underneath it. First, the principle Pearson stated in the governor’s anteroom without a single term of art: that the dead and the taken belong to someone, that study is a relation between the living and the living, and that the burden of justification sits on the holder, not the held. Second, the fact that the law happened at all, which is the precedent’s real cargo. For a century the discipline’s answer to Pearson’s people had been that the science mattered more and that the collections, once made, were facts. The 1990 law established that a practice’s whole evidentiary base can be re-founded on consent retroactively, at real cost to the practice, and that the practice survives. American archaeology did not end. It became a field that asks first, and by most accounts a better one.

I wonder whether the new discipline can be founded asking first, or whether asking-first is a reform available only to fields old enough to have something to be ashamed of, and the question is not rhetorical: this series has itself been reading the stratum for ten essays, quoting no one and compositing no one, and still working the seam that the harvest opened without asking.

What asking first would mean

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The honest close of this essay is a specification, not a proposal, because the arc’s discipline is to state what a consent structure for weights would have to do and to admit that nothing yet does it.

It would have to work without lineage, which means standing could not depend on tracing an individual’s contribution; the unit of the wronged may have to be the register, the community of a vernacular or a forum or a diagnosis, represented the way the law came to let tribes represent the unaffiliated dead. It would have to work without return, which means its remedies live at the point of use rather than the point of holding: constraints on what may be asked of the column, on which strata may be composited into voice, on the re-voicing of the identifiable dead, enforced where excavation happens, since the deposit itself cannot be un-deposited. It would have to reach the living, whose stratum is still forming, which is where it touches everything the companion series established about the accumulation now running. And it would have to be built early, against the whole weight of this essay’s opening precedent, in which the structure arrived only after the drawers were full and a woman had to sit in an anteroom in regalia to begin the counting.

The thesis of this series promised, half seriously, a science whose ethics arrive at its birth rather than after a century of looted tombs. This essay is where the promise stops being a flourish. The tombs are already open. The century is optional.

Pearson spent the rest of her life at the work, on councils and commissions, testifying, negotiating reburials, wearing the regalia when the occasion required a symbol and plain clothes when it required a negotiator. She died in 2003, and at the ceremonies afterward she was spoken of by archaeologists as well as elders, which she would have counted, by every account, as the point: not the defeat of the diggers but the end of digging as a relation between a science and its material. Somewhere in Iowa the woman and her child from the highway cut are back in the ground, in a place recorded in the state’s files and marked in no other way, resting the way the twenty-six settlers were allowed to rest from the first afternoon. It took four years of one woman’s refusals to make the two halves of that cemetery equal. The new stratum holds more people than all the cemeteries ever cut, and no one has yet sat down in the anteroom.

This essay is the ethics center of the excavation arc. It establishes the stratum’s contents as persons, harvested without consent in both tenses, and tests the nearest precedent, the repatriation framework Maria Pearson began, against the deposit: lineage, return, and the grave’s special standing all fail to transfer, while the underlying principle and the proof that a discipline can be re-founded on consent survive. The specification stated at the close, standing without lineage, remedy at the point of use, reach into the living stratum, is left as the founding requirement the discipline has not met. The unguarded register cited here is The Ear That Answers’s, from inside; the re-voicing is the amber of the object arc, turned from question into practice.