In the rapidly expanding urban corridor of southwest Washington, where the metropolitan footprints of Portland and Seattle-Tacoma converge upon Cowlitz County, a profound clash of values is unfolding. Here, Jon Shellenberger, an archaeologist and a descendant of the Yakama, Cowlitz, and Wintu peoples, leads the Cowlitz Indian Tribe’s cultural resources department in a determined effort to safeguard his great-great-grandmother’s ancestral village site from the relentless march of development along the bustling I-5 corridor. Shellenberger asserts unequivocally that the proposed construction is fundamentally incompatible with the sacred and historical significance of the site, yet he finds himself confronting a state permitting system that, by design, often prioritizes development over preservation. He observes that while developers can readily engage archaeologists to facilitate the removal of artifacts for museum exhibition or repatriation, this process fundamentally fails to capture "the blood, sweat and tears in the soil," thereby severing an invaluable connection to the past.

Shellenberger views this permitting paradigm as a systemic mechanism for "erasing a part of our footprint on the landscape." The Washington Department of Archaeology and Historic Preservation (DAHP) holds the statutory authority to issue permits allowing developers, private landowners, or other state agencies to disturb archaeological artifacts, albeit under specific conditions. While DAHP can encourage avoidance of archaeological resources during construction, its primary function often defaults to setting terms for their disturbance. Critically, these conditions may include mandatory tribal consultation if the land is known to contain Indigenous artifacts. Indeed, DAHP has cultivated a reputation, even nationally, for diligently considering tribal concerns, a stance that sets it apart from many other state agencies across the United States.

Jackie Ferry, a non-Native archaeologist serving as the Samish Indian Nation’s tribal historic preservation officer, attests to this progressive approach. "Washington is very progressive compared to other states in the nation when it comes to archaeological protections and tribal concerns," Ferry notes, emphasizing that DAHP frequently withholds permits until tribal issues are adequately addressed. This sentiment is echoed by Valerie Grussing, executive director of the National Association of Tribal Historic Preservation Officers, who has publicly declared Washington’s State Historic Preservation Officer (SHPO), Allyson Brooks, to be "objectively the best SHPO in the nation for tribes." Indigenous archaeologists and tribal employees, including Shellenberger himself, have consistently praised the dedication of Brooks and her team, acknowledging their efforts to ensure permittees engage meaningfully with tribal communities.

However, a critical consensus emerges among experts, including Brooks herself: a permit, despite its rigorous conditions, does not inherently protect artifacts. Instead, it meticulously delineates the parameters under which archaeological resources can be damaged, removed, or, in some cases, entirely destroyed. Brooks, who assumed her role in 1999 and is among the nation’s longest-serving SHPOs, candidly admitted that the ultimate outcome of the system is "project delivery," attributing this reality to the department’s inherent lack of "authority to protect those resources." This fundamental limitation underscores a wider paradox: despite Washington’s commendable reputation for engaging with tribal concerns, the underlying legal framework ultimately prioritizes development.

Across Washington State, the escalating pace of industrial and urban expansion increasingly encroaches upon Indigenous historical sites, placing invaluable tribal cultural resources under imminent threat. A comprehensive review of hundreds of permit applications submitted to DAHP since 2000, obtained through a public records request, starkly illustrates this systemic imbalance: the department has approved an astonishing 99.55% of all applications over the past quarter-century, denying a mere four. Tribal historic preservation officers, legal counsel, archaeologists, and state officials interviewed confirm that this outcome is not a flaw, but rather a deliberate feature of a system designed to circumvent a crucial, yet often overlooked, international legal principle: free, prior, and informed consent (FPIC).

Ferry articulates the core problem succinctly: "The law doesn’t really protect." She concedes that Washington State officials make the utmost effort within existing legal confines, utilizing every available aspect of the law to mitigate harm. Yet, the overriding principle, both at state and federal levels, remains "consider the impacts," rather than "protect the archaeology site." This subtle but profound distinction means that even the most well-intentioned regulatory efforts are ultimately geared towards managing destruction, not preventing it.

Shellenberger traces the genesis of this problem back to the Antiquities Act of 1906, a landmark federal law primarily intended to halt the widespread looting and vandalism of Indigenous village sites. While seemingly protective, the Act paradoxically vested federal authorities with ultimate power over archaeological structures and artifacts on federal lands, often without any requirement to acknowledge or incorporate tribal authority or interest. Signed into law by President Theodore Roosevelt, whose notorious declaration that "the only good Indians are the dead Indians" reflected the prevailing colonial mindset of his era, the Act effectively sidelined Indigenous peoples from the stewardship of their own heritage. Shellenberger emphasizes that tribes have been advocating for their voices to be heard regarding archaeological resource protection since 1906, and likely even longer.

This historical framework, he argues, perpetuated the perception of artifacts, pottery, and village sites as mere "relics of the past" primarily serving "Western scientific learners." This perspective not only legitimized the burgeoning field of archaeology, which was predominantly non-Native, but also granted archaeologists considerable power over tribal cultural heritage. "That was by design," Shellenberger asserts, adding with poignant clarity, "We were expected to go extinct."

Six decades later, the federal government enacted the National Historic Preservation Act (NHPA) of 1966, aiming to establish "a system of procedural protections" for archaeological resources. However, its effectiveness in offering substantive protection for tribal nations remains contentious. A notable example occurred in Wampanoag country in 2009, where tribal nations successfully demonstrated that the entirety of Nantucket Sound was eligible for NHPA protections, yet were ultimately unable to prevent wind developers from securing federal permits to construct a massive wind farm there. The NHPA did, however, establish the office of State Historic Preservation Officer (SHPO), a position currently held by Brooks, and created parallel offices for tribal historic preservation officers (THPOs) to facilitate direct liaison with SHPOs.

At the state level, DAHP mandates that developers thoroughly document any archaeological resources, including those of tribal significance, on a project site prior to construction. This information forms the basis for the department’s recommendations for mitigation measures, designed either to minimize or compensate for the damage, removal, or destruction of artifacts. Yet, neither tribal nations nor DAHP possess the legal authority to halt a project entirely through this system, irrespective of the magnitude of the threat it poses to archaeological resources. As Brooks clarified in an email, "Avoidance is not mandatory, but if you impact an archaeological site you need a mitigation permit."

These mitigation permits are typically informed by land surveys, which are usually funded by the developer and conducted by commercial archaeological consulting companies hired by the same developer. This arrangement presents a significant conflict of interest. A 2024 investigation by HCN and ProPublica exposed a disturbing instance where a team of contract archaeologists, hired by a developer, omitted over a dozen cultural resources from their land survey at a sacred Wenatchi-P’squosa site, where the developer intended to build a solar field. Shellenberger describes this practice of developers pressuring consultants to undercount archaeological resources as having become "rampant and common" in recent decades. Such omissions mean that a site’s true scope and significance may only become apparent once excavation has already commenced, by which point it is often too late to preserve it undisturbed.

Should a land survey accompanying a permit application prove insufficient, DAHP can compel the contract archaeologist to return to the field and revise it until it meets state standards, perhaps by requiring more detailed analysis or a slight adjustment of project boundaries to avoid a particularly sensitive area. However, Brooks explains the agency’s limitations: "If the archaeologist provides us with professionally standard methodology, a good scope of work, we have to issue the permit. We don’t have the authority to make independent judgments."

When a development is proposed on a recognized tribal archaeological site, a formal consultation process is triggered between the tribal government and the relevant state and federal agencies. However, the efficacy of consultation hinges entirely on the good faith and responsiveness of all parties involved. Even if tribes successfully articulate their grievances and concerns, there is no guarantee that their input will lead to a change in project plans. If consultation merely serves as a bureaucratic checkbox on the path to permit approval, tribal governments are left with few avenues for genuine intervention. "Having seen a number of these archaeological excavation permits cross my desk in my career," Shellenberger laments, "I can tell you that our ability as tribes to stop something outright just isn’t there." Brooks unequivocally reiterates this point: "Bottom line is that the tribes have consultation authority but no legal authority to require avoidance or protection of a cultural or sacred resource." The only rare exception is when a proposed project falls within reservation lands, though even this sovereign authority has faced challenges from federal actions.

Beyond the legal limitations, the sheer volume of consultation requests places an immense strain on tribal staff. Shellenberger reveals the daunting scale of this burden: "The volume is enormous. We get over 300 pieces of consultation a month. We have one or two reviewers." This "capacity-building" challenge forces tribal leaders to triage, directing their limited resources to only the most critical sites, knowing that countless others may be lost without adequate attention. For instance, the Confederated Tribes and Bands of the Yakama Nation have recently been inundated with development proposals for industrial-scale renewable energy projects, compelling them to divert resources to combat the largest and most culturally destructive ventures, sometimes resorting to litigation for wildlife protections where explicit Indigenous human rights protections are lacking. This capacity deficit is not unique to Washington; research by the Society for American Archaeology indicates that "the rapid growth of the CRM (cultural resource management) industry is outpacing the capacity of Indigenous communities to engage meaningfully with archaeologists and evaluate technical reports" across the nation. Shellenberger poignantly asks why Indigenous peoples should be forced to choose which elements of their heritage they fight to preserve. "We’re trying to protect everything — all this land, all these resources, in perpetuity. If you have to bargain with what you can pay attention to, things are going to get lost."

In stark contrast, other nations that have formally affirmed Indigenous peoples’ right to grant or withhold consent for development impacting their traditional lands and territories possess more robust legal instruments for protecting cultural resources. A compelling example comes from Ecuador, where the Pueblo Originario Kichwa de Sarayaku successfully invoked their right to consent to protect their ancestral lands from encroaching oil companies, with their rights upheld by international courts. This standard is enshrined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which mandates that governments secure the free, prior, and informed consent of Indigenous nations for projects and policies that could affect them, ensuring such consent is free of coercion and obtained well in advance of any potential impacts. However, in the United States, efforts to codify FPIC into law have repeatedly faltered, both at the federal level and within Washington State.

The closest federal law came to addressing FPIC was in 2011, when President Barack Obama controversially defined it as "meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders"—a definition that fundamentally stripped the "consent" from FPIC. More recently, in 2020, tribal leaders in Washington successfully negotiated for state-level FPIC protections within Governor Jay Inslee’s Climate Commitment Act, in exchange for their support of the bill. Yet, in a move widely characterized as a "betrayal" by Indigenous leaders, Inslee ultimately vetoed the entire section pertaining to tribal consent when signing the bill into law.

The concept of FPIC frequently alarms political actors aligned with corporate interests, who often frame the right to consent as granting "veto power" over development projects. This framing is vehemently contested by supporters of Indigenous sovereignty, who argue that consent is not a veto but a fundamental human right, essential for building durable, co-governed projects that respect Indigenous self-determination. A case study from the Atlas Network, a proponent of free-market principles, and the conservative Macdonald-Laurier Institute, highlighted the "legal and economic disruptions that may have followed" had FPIC been fully implemented in Canada, illustrating the deep-seated resistance to such empowering frameworks.

Against this backdrop, the Trump administration has been actively fast-tracking data center development and resource extraction while simultaneously failing to meet statutory consultation requirements on decisions impacting Indian Country. With such powerful forces at play, securing the right to consent remains an arduous uphill battle for tribal nations. At a 2023 tribal renewable energy summit hosted by DAHP, designed to foster dialogue between tribal nations, industrial developers, and state government, Allyson Brooks offered a stark assessment of the odds: "Consent is not happening any time soon, and I’ll tell you why," she stated bluntly, "In the U.S., private property is a religion."

Shellenberger, weary of the continuous expectation for tribes to compromise, poses a profound question for the future: "How long will it take until everything that we know is in a box sitting in a museum collecting dust?" He underscores that the fight for their cultural heritage is not merely a choice, but an imperative for Indigenous peoples. "I just want to make sure that my great-great-great-grandkids I’ll never meet will know where they are from and be able to go back to that place to say, ‘This is my blood and where it runs.’" His words are a powerful testament to the enduring connection between Indigenous identity, land, and the imperative of protecting ancestral sites for generations yet to come.