In the rapidly expanding urban corridor of southwest Washington, where the metropolitan footprints of Portland and Seattle-Tacoma increasingly converge, a critical battle for Indigenous cultural preservation is unfolding in Cowlitz County. Here, Jon Shellenberger, an archaeologist and a man of Yakama, Cowlitz, and Wintu descent, leads the Cowlitz Indian Tribe’s cultural resources department, striving to safeguard his great-great-grandmother’s ancestral village site from encroaching development along the vital Interstate 5 corridor. Shellenberger asserts that the proposed construction is fundamentally incompatible with the deeply sacred and historically rich grounds, yet he faces a state permitting system that, by design, often favors progress over protection. He laments the current framework, stating, "You can go in and hire an archaeologist to complete the permit for you to remove that archaeology and take it to a museum or give it back to the tribe. But what that does not capture is the blood, sweat and tears in the soil."

Shellenberger views this permitting mechanism as a systematic means of "erasing a part of our footprint on the landscape." The Washington Department of Archaeology and Historic Preservation (DAHP), the state agency responsible, possesses the authority to grant permits to developers, private landowners, or other state entities for disturbing artifacts. This is done under specific conditions set by DAHP, which may also encourage avoidance of archaeological resources during construction. A crucial condition often stipulated by DAHP, especially when Indigenous artifacts are known to exist on the land, is tribal consultation. The department has garnered a reputation for genuinely considering tribal concerns, a stance often highlighted as exemplary among state agencies nationwide.

Jackie Ferry, a non-Native archaeologist serving as the Samish Indian Nation’s tribal historic preservation officer, attests to Washington’s proactive approach. "Washington is very progressive compared to other states in the nation when it comes to archaeological protections and tribal concerns," Ferry notes, adding, "They frequently won’t issue the permit until the tribe’s concerns are addressed." This sentiment is echoed by national figures, including Valerie Grussing, executive director of the National Association of Tribal Historic Preservation Officers, who has publicly lauded Washington’s State Historic Preservation Officer (SHPO), Allyson Brooks, as "objectively the best SHPO in the nation for tribes." Indigenous archaeologists and tribal employees frequently describe positive and constructive working relationships with Brooks and her dedicated team, with Shellenberger himself acknowledging them as "amazing staff" who "make sure that the permittees are engaging with the tribes."

Despite this commendable reputation and the diligent efforts of DAHP personnel, a consensus among experts, including Brooks herself, reveals a profound systemic flaw: a permit does not inherently protect artifacts. Instead, it merely outlines the specific conditions under which these irreplaceable cultural assets can be damaged, removed, or even destroyed. Brooks, who assumed her role in 1999 and stands among the nation’s longest-serving SHPOs, candidly admits that the department’s ultimate goal is "project delivery," attributing this outcome to the agency’s fundamental lack of "authority to protect those resources."

Across Washington, a state witnessing a surge in industrial and residential construction, tribal cultural resources face escalating threats as development proposals increasingly encroach upon ancestral Indigenous sites. Even with one of the nation’s most respected archaeology departments, the current legal and regulatory framework proves inadequate in safeguarding the archaeological heritage of tribal nations. A comprehensive review of hundreds of permit applications filed with DAHP since 2000, obtained through public records, indicates an overwhelming approval rate: 99.55% of applications have been greenlit over the past quarter-century, with only four denials. This stark reality, experts including tribal historic preservation officers, tribal attorneys, archaeologists, and state officials confirm, is not an oversight but an inherent feature of a system designed to circumvent a crucial, internationally recognized concept: free, prior and informed consent.

"The law doesn’t really protect," Ferry emphasizes, articulating a broader concern shared by many. "I think especially in Washington state, they do the best with what they’re given. They employ all aspects of the law in order to protect in any way they can, but ultimately it is ‘consider the impacts,’ not ‘protect the archaeology site.’ And that’s at both state and federal levels." This distinction between merely "considering impacts" and actively "protecting sites" lies at the heart of the ongoing struggle for Indigenous communities.

Shellenberger traces the genesis of this fundamental problem back to the Antiquities Act of 1906. This landmark federal legislation, while ostensibly created to curb the rampant looting and vandalism of Indigenous village sites, paradoxically centralized authority over structures and artifacts on federal lands within the federal government. Critically, it did not necessitate the acknowledgment of tribal authority or interest, effectively sidelining Indigenous peoples from decisions regarding their own heritage. The Act bears the signature of President Theodore Roosevelt, whose notorious quote, "the only good Indians are the dead Indians," underscores the prevailing colonial attitudes of the era. Shellenberger points out, "Tribes have been fighting to have their voices heard regarding the protection of archaeological resources since 1906, easy — probably longer." He further notes that artifacts and village sites were historically perceived as "relics of the past and were for Western scientific learners," a perspective that legitimized the burgeoning field of archaeology and granted often non-Native archaeologists immense power over tribal cultural heritage. This marginalization, he argues, "was by design. We were expected to go extinct."

Six decades later, the federal government enacted the National Historic Preservation Act (NHPA), establishing a "system of procedural protections" for archaeological resources. However, the legislation’s effectiveness in providing substantial protection for tribal nations remains contentious. A notable instance occurred in Wampanoag country in 2009, where tribal nations successfully demonstrated that the entirety of Nantucket Sound qualified for NHPA protections, yet they were ultimately unable to prevent wind energy developers from securing federal permits for construction. The NHPA did, however, establish the office of the State Historic Preservation Officer, which Brooks occupies, and created parallel tribal historic preservation offices to foster liaison with the SHPO.

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

These mitigation permits are typically based on land surveys, which developers usually fund and commercial archaeological consulting companies they hire conduct. This practice introduces a significant conflict of interest. A comprehensive 2024 investigation, for example, uncovered that a team of contract archaeologists, employed by a developer, omitted over a dozen cultural resources from their land survey at a sacred Wenatchi-P’squosa site where a large-scale solar field was planned. Shellenberger states that such developer pressure to undercount archaeological resources has become "rampant and common" in recent decades. He warns that if a contractor misrepresents the extent of resources, a site could prove far more significant once excavation begins, but by then, it is often too late to preserve it undisturbed.

When a submitted land survey is deemed insufficient, DAHP requires the contract archaeologist to revise it until it meets state standards, perhaps necessitating greater detail or a minor adjustment of project boundaries to avoid sensitive areas. Brooks explains the department’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."

A proposed development on a known tribal archaeological site triggers a consultation process between the affected tribal government and the relevant state and federal agencies. However, this consultation heavily relies on the good faith of all parties involved; even if tribes voice their grievances, there is no guarantee that their concerns will be heeded. If consultation devolves into a mere procedural checkbox on the path to permit approval, tribal governments find themselves with limited recourse. Shellenberger, reflecting on his career, states, "Having seen a number of these archaeological excavation permits cross my desk, I can tell you that our ability as tribes to stop something outright just isn’t there."

Brooks unequivocally clarifies this inherent power imbalance: "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 exception arises if a project is situated on reservation lands, though even this sovereign authority faces challenges from federal efforts, particularly from administrations seeking to accelerate resource extraction and development.

Beyond the lack of binding authority, the sheer volume of consultation requests places an immense strain on tribal staff. "The volume is enormous. We get over 300 pieces of consultation a month. We have one or two reviewers," Shellenberger explains, highlighting the severe "capacity-building" hurdle. Consequently, tribal leaders are often forced into a difficult position, triaging requests and focusing only on the most critically important sites, knowing that others may be lost.

This capacity crisis is not unique to Washington. The Confederated Tribes and Bands of the Yakama Nation, for instance, have recently been inundated with proposals for industrial-scale renewable energy projects, compelling them to allocate scarce resources to the largest and most culturally threatening developments. This often necessitates litigating for wildlife protections in instances where Indigenous human rights protections are demonstrably lacking. Research from the Society for American Archaeology corroborates this national trend, indicating 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." Shellenberger passionately argues that Indigenous peoples should not be compelled to choose which heritage sites to defend. "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 free, prior and informed consent (FPIC) for development impacting their lands and territories possess more robust legal instruments for resource protection. A compelling example is the Pueblo Originario Kichwa de Sarayaku in Ecuador, whose Indigenous community successfully shielded their lands from encroaching oil companies, partly because their right to consent was legally upheld by the courts.

This crucial standard is enshrined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which stipulates that governments must secure Indigenous nations’ informed consent for projects and policies that could affect them, ensuring it is free of coercion and obtained well in advance of any potential impacts. However, in the United States, tribal efforts to codify FPIC into law have consistently met with resistance at both federal and state levels.

The closest federal law has come to addressing this issue was in 2011, when President Barack Obama controversially defined FPIC as "meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders." This interpretation, widely criticized by Indigenous advocates, effectively diluted consent to mere discussion, stripping it of its binding power. Similarly, in Washington state in 2020, tribal leaders successfully negotiated for state-level FPIC protections within Governor Jay Inslee’s Climate Commitment Act, in exchange for their support of the bill. However, when it came time to sign the legislation into law, Inslee controversially vetoed the entire section pertaining to tribal consent, an act that many Indigenous leaders unequivocally characterized as a betrayal.

The concept of FPIC often generates apprehension among political actors and corporate interests, who frequently characterize the right to consent as an undesirable "veto power" over development projects. However, proponents of Indigenous sovereignty and human rights strongly refute this framing, asserting that consent is not a veto but a fundamental human right essential for durable, co-governed projects. A case study from the Atlas Network and the Macdonald-Laurier Institute, both advocating for free-market principles, underscored the significant "legal and economic disruptions that may have followed" had FPIC been fully implemented in Canada.

More recently, the Trump administration has been actively fast-tracking data center development and resource extraction projects, often simultaneously failing to meet statutory consultation requirements for decisions affecting Indian Country. Faced with such powerful political and economic forces, the struggle for tribal nations to secure the right to consent remains an arduous uphill battle. At a tribal renewable energy summit in 2023, hosted by DAHP to facilitate dialogue between tribal nations, industrial developers, and state government, Brooks delivered a blunt assessment of the odds: "Consent is not happening any time soon, and I’ll tell you why. In the U.S., private property is a religion."

Shellenberger, expressing profound weariness, insists that tribes should not continually be the ones forced to compromise. He poses a poignant question: "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 cultural heritage is not an option for Indigenous peoples; it is an imperative. "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 resonate as a powerful call for intergenerational continuity, against a backdrop of relentless development threatening to sever the ties between future generations and their ancestral lands.