In the rapidly expanding urban landscape of southwest Washington, where the metropolitan footprints of Portland and Seattle-Tacoma increasingly converge, a critical battle for cultural survival is unfolding in Cowlitz County. Here, Jon Shellenberger, a man of Yakama, Cowlitz, and Wintu descent who also serves as an archaeologist and director of the Cowlitz Indian Tribe’s cultural resources department, stands at the forefront of efforts to safeguard the ancestral village site of his great-great-grandmother from the encroaching tide of industrial development along the vital Interstate 5 corridor. Shellenberger articulates a profound incompatibility between modern construction projects and the sanctity of these ancient grounds, highlighting a systemic flaw within the state’s permitting framework that, despite its progressive reputation, consistently favors development over the preservation of Indigenous history. He poignantly observes that while the current system allows developers to hire archaeologists to meticulously document and then remove artifacts for museum display or tribal repatriation, it utterly fails to capture the intangible, yet deeply felt, "blood, sweat and tears in the soil" that imbue these sites with their true spiritual and historical significance.

For Shellenberger and many Indigenous communities, this procedural approach to archaeological mitigation is not merely a bureaucratic exercise but a subtle, yet insidious, act of "erasing a part of our footprint on the landscape." The Washington State Department of Archaeology and Historic Preservation (DAHP), the primary state agency tasked with overseeing archaeological resources, possesses the statutory authority to issue permits allowing developers, private landowners, and other state entities to disturb or even destroy artifacts. This authority is exercised under specific conditions set by DAHP, which often include tribal consultation when Indigenous artifacts are known or suspected to be present. Indeed, DAHP has earned a commendable reputation, particularly within the United States, for its proactive engagement with tribal concerns, often holding a higher standard than many other state agencies.

Jackie Ferry, a non-Native archaeologist and the tribal historic preservation officer for the Samish Indian Nation, attests to Washington’s advanced standing, noting that "Washington is very progressive compared to other states in the nation when it comes to archaeological protections and tribal concerns." She further emphasizes DAHP’s diligence, stating they "frequently won’t issue the permit until the tribe’s concerns are addressed," a testament to their commitment to robust consultation processes. This positive assessment is echoed at a national level, with Valerie Grussing, executive director of the National Association of Tribal Historic Preservation Officers, unequivocally declaring State Historic Preservation Officer (SHPO) Allyson Brooks, who leads DAHP, as "objectively the best SHPO in the nation for tribes." Indigenous archaeologists and tribal cultural resource managers consistently commend Brooks and her dedicated team, acknowledging their efforts to ensure developers engage meaningfully with tribal nations.

However, a critical paradox emerges from this lauded system: as Brooks herself, a long-serving SHPO who joined the department in 1999, candidly admits, a permit does not genuinely protect artifacts. Instead, it merely delineates the terms under which these irreplaceable cultural assets can be disturbed, removed, or, in some cases, entirely destroyed. "The end result is project delivery," Brooks states, underscoring the department’s inherent limitation: it lacks the fundamental "authority to protect those resources" outright. This systemic constraint means that even the most well-intentioned and diligent state agency, operating within its legal parameters, cannot halt development simply to preserve an archaeological site in situ.

Across Washington State, the relentless march of industrial expansion, particularly driven by rapid population growth and infrastructure demands, continues to threaten tribal cultural resources. Despite DAHP’s exemplary national standing, its inherent limitations render it unable to fully safeguard the archaeological heritage of tribal nations. A comprehensive review of hundreds of permit applications filed with DAHP since 2000 reveals a stark reality: the department has approved an overwhelming 99.55% of applications over the past quarter-century, denying only four. This near-universal approval rate, as explained by tribal historic preservation officers, attorneys, archaeologists, and state officials, is not a failure of diligence but a deliberate design of the system itself, structured to avoid a contentious, yet globally recognized, principle: free, prior, and informed consent (FPIC).

Ferry articulates this systemic flaw succinctly: "The law doesn’t really protect… ultimately it is ‘consider the impacts,’ not ‘protect the archaeology site.’ And that’s at both state and federal levels." This fundamental distinction between impact mitigation and outright protection lies at the heart of the ongoing struggle faced by Indigenous communities. The very architecture of archaeological preservation laws, both federally and at the state level, prioritizes documenting and managing the impacts of development rather than providing a mechanism for communities to halt projects that threaten their irreplaceable heritage.

Jon Shellenberger traces the genesis of this problem back to the Antiquities Act of 1906, landmark legislation initially intended to curb the rampant looting and vandalism of Indigenous village sites. While seemingly benevolent in its aim, the Act centralized authority over structures and artifacts on federal lands with the federal government, largely sidelining or entirely disregarding tribal authority and interest. This legislation bears the signature of President Theodore Roosevelt, whose notorious quote, "the only good Indians are the dead Indians," chillingly reflects the prevailing colonial mindset of the era, which often viewed Indigenous peoples as a vanishing race. Shellenberger emphasizes that "Tribes have been fighting to have their voices heard regarding the protection of archaeological resources since 1906, easy — probably longer," highlighting the enduring struggle for self-determination over their own cultural heritage.

During this period, artifacts and ancestral sites were largely conceptualized as "relics of the past" primarily for the study and edification of "Western scientific learners." This perspective not only legitimized the nascent field of archaeology, often dominated by non-Native practitioners, but also effectively dispossessed tribal nations of control over their own cultural patrimony, reinforcing the colonial narrative that Indigenous cultures were historical curiosities rather than living traditions. "That was by design. We were expected to go extinct," Shellenberger asserts, underscoring the genocidal undercurrents of policies that stripped Indigenous peoples of their lands, languages, and cultural control.

Six decades later, the federal government enacted the National Historic Preservation Act (NHPA) to establish "a system of procedural protections" for archaeological resources. While an improvement, its effectiveness in offering substantial, definitive protection for tribal nations remains questionable. A salient example is the 2009 case in Wampanoag country, where tribal nations successfully demonstrated that the entirety of Nantucket Sound was eligible for NHPA protections, yet were ultimately powerless to prevent wind developers from receiving federal permits for construction. The NHPA did, however, establish the critical roles of State Historic Preservation Officers (SHPOs) and their tribal counterparts, Tribal Historic Preservation Officers (THPOs), facilitating a consultation framework that, while often robust, still lacks binding authority for tribes.

At the state level, DAHP mandates that developers document any archaeological resources, including those of tribal significance, on a project site before construction commences. This information forms the basis for DAHP’s recommendations regarding mitigation strategies—measures designed to minimize or compensate for the damage, removal, or destruction of artifacts. However, a critical systemic flaw lies in the fact that neither tribal nations nor DAHP possess the legal authority to unilaterally halt a project, irrespective of the scale of the threat it poses to archaeological resources. As Brooks plainly stated in an email, "Avoidance is not mandatory, but if you impact an archaeological site you need a mitigation permit."

These mitigation permits are predicated on land surveys typically funded by the developer and conducted by commercial archaeological consulting companies, also hired by the developer. This financial arrangement creates an inherent conflict of interest, as highlighted by a 2024 investigation by HCN and ProPublica, which revealed a team of contract archaeologists, working for a developer, omitted over a dozen cultural resources from their land survey at a Wenatchi-P’squosa sacred site where a solar field was proposed. Shellenberger confirms that developers may exert pressure on consultants to undercount archaeological resources, a practice he describes as having become "rampant and common" in recent decades. Such undercounting can lead to a site revealing itself to be far more extensive and significant once excavation begins, by which point, it is often too late to preserve it undisturbed, leading to irreversible loss.

If a land survey submitted with a permit application is deemed insufficient, DAHP can compel the contract archaeologist to return to the field for revisions until state standards are met, perhaps requiring more detailed documentation or a minor adjustment of project boundaries to avoid a particularly sensitive area. However, Brooks clarifies, "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." This illustrates the procedural rather than protective nature of the law; once professional standards for documentation are met, the project proceeds.

When a development is proposed on a known tribal archaeological site, it triggers a consultation process involving the tribal government and relevant state and federal agencies. While intended to facilitate dialogue and address tribal concerns, this consultation often relies heavily on the good faith of all parties. The reality, however, is that even when tribes articulate significant grievances, there is no guarantee their concerns will be genuinely heeded. If consultation devolves into a mere "box-checking exercise" to satisfy regulatory requirements rather than a true negotiation, tribal governments find themselves with limited recourse. "Having seen a number of these archaeological excavation permits cross my desk in my career, I can tell you that our ability as tribes to stop something outright just isn’t there," Shellenberger lamented.

Brooks unequivocally confirms this lack of tribal authority: "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 significant exception applies to projects proposed directly on reservation lands, though even this sovereign authority is currently facing challenges, with the federal government actively working to undermine tribal nations’ control over such projects. Beyond the legal limitations, the sheer volume of development proposals places an immense strain on tribal staff. Shellenberger notes, "The volume is enormous. We get over 300 pieces of consultation a month. We have one or two reviewers. Capacity-building is a hurdle for us." This overwhelming burden forces tribal leaders into a difficult triage, compelling them to prioritize only the most critical sites, knowing that many others will inevitably be lost.

This capacity crisis is not unique to Washington. The Confederated Tribes and Bands of the Yakama Nation, for instance, have recently been deluged with proposals for industrial-scale renewable energy projects, forcing them to divert scarce resources to litigate for wildlife protections in instances where Indigenous human rights protections are demonstrably lacking. Research by the Society for American Archaeology corroborates this widespread issue, 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 people should not be forced into the agonizing position of choosing 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 globally have affirmed Indigenous peoples’ inherent right to give or withhold their consent for development impacting their traditional lands and territories, thereby providing more robust legal instruments for cultural resource protection. A compelling example comes from Ecuador, where the Pueblo Originario Kichwa de Sarayaku successfully protected their ancestral lands from encroaching oil companies, largely because their right to free, prior, and informed consent (FPIC) was 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 the informed consent of Indigenous nations for projects and policies that could affect them, ensuring this consent is free of coercion and obtained well in advance of any potential impacts.

However, in the United States, tribal efforts to codify FPIC into binding law have repeatedly stalled. The closest federal policy came was in 2011, when President Barack Obama controversially redefined FPIC as "meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders"—a reinterpretation that effectively stripped the "consent" from FPIC, rendering it a mere advisory process. Similarly, in Washington state, tribal leaders successfully negotiated for state-level FPIC protections within Governor Jay Inslee’s Climate Commitment Act in 2020, offering their crucial support for the bill in return. Yet, when the time came to sign the legislation into law, Governor Inslee controversially vetoed the entire section pertaining to tribal consent, an act that many Indigenous leaders decried as a profound "betrayal."

The political resistance to FPIC often stems from corporate interests and their allies, who frequently characterize the right to consent as granting "veto power" over development projects. Proponents of Indigenous sovereignty and human rights, however, strongly contest this framing, arguing that consent is not a veto but a fundamental human right essential for achieving durable, co-governed projects that respect Indigenous self-determination. A case study by 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" from implementing FPIC in Canada, underscoring the powerful economic forces arrayed against it.

Against this backdrop, the Trump administration has aggressively fast-tracked data center development and resource extraction, often failing to meet statutory consultation requirements for decisions impacting Indian Country. With such powerful political and economic forces at play, winning the right to genuine consent remains an formidable uphill battle for tribal nations. At a 2023 tribal renewable energy summit, hosted by DAHP to foster dialogue between tribal nations, industrial developers, and state government, Allyson Brooks was starkly pragmatic about the prospects: "Consent is not happening any time soon, and I’ll tell you why," she declared, "In the U.S., private property is a religion."

Shellenberger, however, expresses a profound weariness with the constant expectation for tribes to compromise their ancestral heritage. "How long will it take until everything that we know is in a box sitting in a museum collecting dust?" he questions, emphasizing that the fight for cultural heritage is not an optional endeavor for Indigenous peoples. His ultimate aspiration transcends legal battles and political negotiations; it is a deeply personal and intergenerational commitment: "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.’"