In the rapidly urbanizing expanse of southwest Washington, where the metropolitan footprints of Portland and Seattle-Tacoma increasingly converge within Cowlitz County, a profound struggle unfolds over the preservation of Indigenous cultural heritage. At the heart of this conflict is Jon Shellenberger, an archaeologist and director of the Cowlitz Indian Tribe’s cultural resources department, who is fighting to protect the sacred site of his great-great-grandmother’s ancestral village from relentless development along the bustling I-5 corridor. Shellenberger, whose lineage includes Yakama, Cowlitz, and Wintu descent, contends that the proposed construction is fundamentally incompatible with the deep historical and spiritual significance of the land, yet he faces a state permitting system that often favors development over preservation. He observes that while the system allows developers to hire archaeologists to meticulously document and remove artifacts for museum display or return to tribes, it utterly fails to capture "the blood, sweat and tears in the soil"—the intangible, living connection that defines Indigenous identity and belonging to the landscape.

For Shellenberger, this procedural approach to archaeological resources amounts to "erasing a part of our footprint on the landscape." Washington’s Department of Archaeology and Historic Preservation (DAHP) holds the authority to issue permits allowing developers, private landowners, or other state agencies to disturb archaeological sites under specific conditions. While DAHP can encourage avoidance of such resources during construction, its primary mandate often leans towards facilitating projects. A key condition frequently imposed by DAHP is tribal consultation, particularly if a site is known to harbor Indigenous artifacts. Indeed, DAHP has garnered a reputation, nationally and within tribal communities, for its earnest efforts to consider tribal concerns. Jackie Ferry, a non-Native archaeologist serving as the Samish Indian Nation’s tribal historic preservation officer, praises Washington’s progressive stance compared to many other states, noting, "They frequently won’t issue the permit until the tribe’s concerns are addressed."

This commendation extends to Allyson Brooks, the State Historic Preservation Officer (SHPO) who leads DAHP and is among the nation’s longest-serving SHPOs, having joined the department in 1999. Valerie Grussing, executive director of the National Association of Tribal Historic Preservation Officers, unequivocally states, "In Washington, the SHPO… is objectively the best SHPO in the nation for tribes." Indigenous archaeologists and tribal employees widely echo this sentiment, acknowledging positive working relationships with Brooks and her dedicated team. Shellenberger himself describes DAHP staff as "amazing," ensuring that permittees engage with tribal nations. However, despite these exemplary efforts and strong relationships, a consensus emerges among experts, including Brooks herself: a permit, by its very nature, does not safeguard artifacts. Instead, it meticulously outlines the conditions under which these irreplaceable cultural assets can be damaged, removed, or utterly destroyed. Brooks plainly states that the "end result is project delivery," conceding that the department’s core limitation is its lack of "authority to protect those resources."

This critical gap in authority manifests statewide, as burgeoning industrial and residential construction proposals increasingly encroach upon Indigenous historical sites. Even with one of the nation’s most respected archaeology departments, Washington state finds itself unable to truly protect the archaeological heritage of its tribal nations. A comprehensive review of hundreds of permit applications filed with DAHP since 2000 reveals a stark reality: the department has approved an astonishing 99.55% of applications over the past 25 years, denying only four. This near-universal approval rate, as explained by tribal historic preservation officers, tribal attorneys, archaeologists, and state officials, is not an oversight but a fundamental design feature of a system deliberately structured to sidestep a crucial, yet often overlooked, international standard: free, prior, and informed consent.

Ferry underscores this systemic limitation, observing, "The law doesn’t really protect." She commends Washington state for doing "the best with what they’re given," utilizing every legal avenue to protect, but ultimately, the mandate is to "consider the impacts," not to "protect the archaeology site." This applies equally at both state and federal levels, highlighting a pervasive legislative philosophy that prioritizes economic development over the inherent right to preserve cultural heritage. The roots of this imbalance trace back over a century, as Shellenberger explains, to the Antiquities Act of 1906. While initially conceived to curb the rampant looting and vandalism of Indigenous village sites, this landmark federal legislation paradoxically established the federal government as the ultimate authority over structures and artifacts on federal lands, effectively sidelining tribal authority and interests. This act, signed into law by President Theodore Roosevelt—a figure infamously associated with the phrase "the only good Indians are the dead Indians"—set a precedent that profoundly marginalized Indigenous peoples. Shellenberger notes, "Tribes have been fighting to have their voices heard regarding the protection of archaeological resources since 1906, easy—probably longer." He adds that this era viewed Indigenous artifacts, such as pottery and village sites, as mere "relics of the past" intended for "Western scientific learners," thereby legitimizing the nascent field of archaeology while deliberately disempowering tribal nations and vesting control over their cultural heritage in often non-Native archaeologists. "That was by design," Shellenberger asserts. "We were expected to go extinct."

Six decades later, the federal government enacted the National Historic Preservation Act (NHPA) in 1966, aiming to establish "a system of procedural protections" for archaeological resources. This legislation created the roles of the State Historic Preservation Officer (SHPO), currently held by Allyson Brooks, and tribal counterparts (Tribal Historic Preservation Officers or THPOs) to facilitate liaison with the SHPO. However, the NHPA’s impact on substantial protection for tribal nations remains ambiguous. A poignant example is found in Wampanoag country in 2009, where tribal nations successfully demonstrated that the entirety of Nantucket Sound was eligible for NHPA protections, yet this triumph did not prevent wind developers from ultimately securing federal permits to construct a major offshore wind farm there. The procedural nature of the NHPA, much like state laws, means that documenting a site’s significance does not inherently grant a veto over its destruction.

At the state level, DAHP requires developers to document all archaeological resources, including tribal ones, on a project site before construction commences. This information forms the basis for DAHP’s recommendations for mitigation strategies, which typically aim to minimize or compensate for the damage, removal, or destruction of artifacts. Crucially, 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 confirms this inherent limitation in an email, stating, "Avoidance is not mandatory, but if you impact an archaeological site you need a mitigation permit." These mitigation permits are predicated on land surveys, which are usually funded by the developer and conducted by commercial archaeological consulting companies hired directly by the developer. This arrangement presents a clear conflict of interest, as a 2024 investigation by HCN and ProPublica uncovered a case where contract archaeologists, employed by a developer, omitted over a dozen cultural resources from their land survey at a sacred Wenatchi-P’squosa site slated for a solar field. Developers may exert subtle or overt pressure on consultants to downplay or undercount archaeological resources, a practice Shellenberger describes as having become "rampant and common" in recent decades. Should a contractor underestimate the scope of resources, a site could prove far more extensive once excavation begins, but by then, the opportunity to leave it undisturbed is irrevocably lost.

If a land survey submitted with a permit application is deemed insufficient, DAHP can compel the contract archaeologist to return to the field and revise it until it meets state standards, perhaps requiring greater detail or a slight adjustment of project boundaries to avoid a sensitive area. However, Brooks emphasizes the department’s constraints: "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 proposed development impacts a known tribal archaeological site, a formal consultation process is triggered between the tribal government and the relevant state and federal agencies. Yet, the efficacy of this consultation hinges entirely on the good faith of all parties involved. Even when tribes vociferously air their grievances, there is no guarantee they will be heeded. If consultation merely serves as a bureaucratic checkbox on the path to permit approval, tribal governments find themselves with limited recourse. Shellenberger laments, "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." Brooks unequivocally states the core problem: "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 narrow exception exists if a project is proposed on reservation lands, though even here, the federal government has historically sought to undermine tribal nations’ sovereign authority over such developments.

Beyond the legal limitations, the sheer volume of consultation requests places an enormous strain on tribal staff, many of whom are already under-resourced. Shellenberger details the overwhelming workload: "The volume is enormous. We get over 300 pieces of consultation a month. We have one or two reviewers." This chronic "capacity-building" hurdle forces tribal leaders into an impossible position: they must triage, prioritizing only the most critically threatened or significant sites, knowing that countless others may be lost without intervention. The Confederated Tribes and Bands of the Yakama Nation, for instance, have recently faced a deluge of industrial-scale renewable energy proposals, compelling them to divert scarce resources to combat the largest and most culturally destructive projects, sometimes even resorting to litigation for wildlife protections where Indigenous human rights protections are conspicuously absent. This issue is not unique to Washington; research by the Society for American Archaeology highlights 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 to choose which heritage sites they fight for. "We’re trying to protect everything—all this land, all these resources, in perpetuity," he states. "If you have to bargain with what you can pay attention to, things are going to get lost."

In contrast to the U.S. approach, several other nations have formally affirmed Indigenous peoples’ right to give or withhold their consent for development impacting their traditional lands and territories, providing more robust tools for resource protection. A notable example comes from Ecuador, where the Pueblo Originario Kichwa de Sarayaku successfully protected their ancestral lands from trespassing oil companies, partly because courts upheld their right to consent. This international standard is enshrined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which mandates that governments secure Indigenous nations’ free, prior, and informed consent (FPIC) on projects and policies that could affect them, free from coercion and well in advance of any potential impacts. However, in the United States, tribal efforts to codify FPIC into law have consistently failed at both the federal and state levels. The closest federal law came to addressing the issue was in 2011 when President Barack Obama defined FPIC as "meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders"—a definition that, for many Indigenous advocates, stripped the "consent" from FPIC.

In Washington state, tribal leaders achieved a momentary victory in 2020 by successfully negotiating for state-level FPIC protections within Governor Jay Inslee’s Climate Commitment Act, in exchange for their crucial support of the bill. However, when it came time to sign the legislation into law, Inslee controversially vetoed the entire section on tribal consent, an act that many Indigenous leaders decried as a profound betrayal. The concept of FPIC often generates alarm among political actors aligned with corporate interests, who frequently characterize the right to consent as granting "veto power" over critical development projects. Yet, supporters of Indigenous sovereignty vigorously contest this right-wing framing, arguing that consent is not a "veto" but a fundamental human right and a cornerstone for building durable, co-governed projects. 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" had FPIC been fully implemented in Canada, underscoring the powerful economic and political forces arrayed against it.

Further complicating matters, the Trump administration has aggressively fast-tracked data center development and resource extraction while simultaneously failing to meet statutory consultation requirements for decisions affecting Indian Country. Against such formidable political and economic headwinds, securing the right to consent remains an arduous 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 offered a stark assessment of the political realities: "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 articulates the profound weariness within tribal communities of constantly having to compromise their heritage. 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 for Indigenous people, fighting for their cultural heritage is not merely an option but an existential 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.’" Their struggle is a testament to an enduring fight for cultural continuity against a system that, despite good intentions, remains structurally predisposed to dismantle their ancestral ties to the land.