In the rapidly developing landscape of southwest Washington, where the expansive urban footprints of Portland and Seattle-Tacoma converge upon the verdant territories of Cowlitz County, a critical battle unfolds over the preservation of Indigenous cultural heritage. At the heart of this struggle is Jon Shellenberger, a man deeply rooted in the land through his Yakama, Cowlitz, and Wintu ancestry, who now dedicates his professional life as an archaeologist and director of the Cowlitz Indian Tribe’s cultural resources department to safeguarding the ancestral village site of his great-great-grandmother. This cherished place, imbued with generations of his family’s history, faces an existential threat from encroaching development along the bustling Interstate 5 corridor, a challenge Shellenberger deems fundamentally incompatible with the site’s profound cultural significance.

Shellenberger articulates a deep-seated frustration with Washington state’s existing permitting system, which, despite its purported progressiveness, appears inherently biased towards development. He observes that the system readily allows developers to commission archaeologists to facilitate the removal of artifacts, ostensibly for museum display or return to tribes, but fails to acknowledge or protect the intrinsic, spiritual value embedded within the earth itself. "What that does not capture," Shellenberger laments, "is the blood, sweat and tears in the soil." For him, this process amounts to a systematic "erasing a part of our footprint on the landscape," a symbolic and tangible obliteration of Indigenous presence and history.

The Washington Department of Archaeology and Historic Preservation (DAHP), the state agency vested with the authority to regulate such activities, operates under a framework that permits developers, private landowners, and other state entities to disturb archaeological resources. While DAHP sets conditions for such disturbances and often encourages avoidance, its primary function, critics argue, is to manage the destruction of sites, not their outright protection. A key condition frequently imposed by DAHP is tribal consultation, particularly when Indigenous artifacts are known to exist on a proposed development site. The department has, commendably, cultivated a reputation for taking tribal concerns seriously, setting a standard often lauded across the nation.

Jackie Ferry, a non-Native archaeologist and the Samish Indian Nation’s tribal historic preservation officer, corroborates this assessment, stating, "Washington is very progressive compared to other states in the nation when it comes to archaeological protections and tribal concerns. They frequently won’t issue the permit until the tribe’s concerns are addressed." This sentiment is echoed at a national level by Valerie Grussing, executive director of the National Association of Tribal Historic Preservation Officers, who emphatically praises Allyson Brooks, Washington’s State Historic Preservation Officer (SHPO). "In Washington, the SHPO – I say this a lot, and I’ll go on the record – is objectively the best SHPO in the nation for tribes," Grussing asserts. Indigenous archaeologists and tribal employees frequently express positive working relationships with Brooks and her dedicated team, acknowledging their diligent efforts to ensure permittees engage meaningfully with tribal communities.

However, a stark reality underscores these accolades: even the most well-intentioned and effective state agencies like DAHP are ultimately constrained by the limitations of their legal mandate. Brooks herself, one of the nation’s longest-serving SHPOs, having joined the department in 1999, candidly admits that a permit does not genuinely protect artifacts. Instead, it merely dictates the conditions under which these irreplaceable cultural assets can be damaged, removed, or destroyed. "The end result is project delivery," Brooks told HCN, lamenting her department’s inherent lack of "authority to protect those resources."

Indeed, a comprehensive review of hundreds of permit applications filed with DAHP since 2000 reveals a troubling pattern: the department has approved an overwhelming 99.55% of applications over the past quarter-century, denying a mere four. This striking statistic, corroborated by tribal historic preservation officers, attorneys, archaeologists, and state officials, underscores a systemic design flaw: the current regulatory framework, at both state and federal levels, is built to facilitate development while sidestepping a crucial, yet often overlooked, concept known as free, prior, and informed consent (FPIC). Ferry succinctly captures this legislative deficiency, noting, "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."

The origins of this systemic imbalance can be traced back to the Antiquities Act of 1906, legislation initially conceived to curb the rampant looting and vandalism of Indigenous village sites. While seemingly progressive for its time, the Act centralized authority over structures and artifacts on federal lands with the U.S. government, largely disregarding tribal sovereignty and interests. This seminal law, signed by President Theodore Roosevelt—a figure infamously associated with the phrase "the only good Indians are the dead Indians"—legitimized the burgeoning field of Western archaeology, often sidelining tribal nations and granting non-Native archaeologists significant power over Indigenous cultural heritage. "That was by design. We were expected to go extinct," Shellenberger states, highlighting the historical context of cultural suppression embedded within early preservation efforts. Tribes, he adds, have been fighting for their voices to be heard regarding archaeological resource protection since 1906, if not longer.

Decades later, the federal government enacted the National Historic Preservation Act (NHPA) to establish a "system of procedural protections" for archaeological resources. While a step forward, the NHPA’s effectiveness in providing substantial protection for tribal nations remains ambiguous. A salient example is the 2009 case in Wampanoag country, where tribal nations successfully argued for the entirety of Nantucket Sound to be eligible for NHPA protections. Despite this significant designation, they were ultimately unable to prevent wind developers from receiving federal permits to construct there, illustrating the NHPA’s limitations in halting development when faced with powerful economic interests. The NHPA did, however, establish the offices of State Historic Preservation Officers (SHPOs) and their tribal counterparts, creating official liaison points for consultation, though not necessarily for consent.

At the state level, DAHP mandates developers to document any archaeological resources, including tribal ones, on a project site before construction begins. This information then informs DAHP’s recommendations for mitigation measures, aimed at minimizing or compensating for the damage, removal, or destruction of artifacts. Crucially, neither tribal nations nor DAHP possess the legal authority to outright halt a project through this system, regardless of the magnitude of the threat to archaeological resources. "Avoidance is not mandatory," Brooks confirmed, "but if you impact an archaeological site you need a mitigation permit."

These mitigation permits are typically based on land surveys funded by the developer and conducted by commercial archaeological consulting companies hired by the developer. This arrangement presents a significant conflict of interest. A 2024 investigation by HCN and ProPublica uncovered a disturbing instance where contract archaeologists, engaged by a developer, omitted over a dozen cultural resources from their survey at a sacred Wenatchi-P’squosa site targeted for a solar field. Shellenberger notes that developer pressure to undercount archaeological resources has become "rampant and common" in recent decades. Such underreporting can lead to a site revealing its true scope only after excavation begins, at which point it is too late to preserve it undisturbed. While DAHP can demand revisions to insufficient land surveys, 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."

When a development is proposed on a known tribal archaeological site, a consultation process between the tribal government and relevant state and federal agencies is triggered. However, this consultation relies heavily on the good faith of all parties. If consultation devolves into a mere box-ticking exercise, tribal governments possess limited recourse. Shellenberger emphasizes this critical deficiency: "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, "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 lies with projects proposed on reservation lands, though even this sovereign authority faces challenges, with recent federal actions aiming to undermine tribal control over such developments.

The sheer volume of consultation requests places an enormous strain on tribal staff, many of whom operate with limited resources. Shellenberger points out, "We get over 300 pieces of consultation a month. We have one or two reviewers. Capacity-building is a hurdle for us." This forces tribal leaders to triage, prioritizing only the most critical sites, a painful choice that inevitably leads to the loss of other invaluable heritage. The Confederated Tribes and Bands of the Yakama Nation, for example, have been inundated with proposals for industrial-scale renewable energy projects, compelling them to divert scarce resources to address the largest and most culturally threatening developments, sometimes resorting to litigation for wildlife protections where Indigenous human rights safeguards are insufficient. This capacity crisis extends beyond Washington, with research by the Society for American Archaeology indicating that the rapid growth of the cultural resource management (CRM) industry is outstripping Indigenous communities’ ability to meaningfully engage with archaeologists and evaluate technical reports. Shellenberger argues passionately that Indigenous people should not be forced 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."

A stark contrast emerges when comparing the U.S. approach to Indigenous cultural protection with that of other nations that have enshrined the right of Indigenous peoples to give or withhold their consent for development impacting their traditional lands and territories. In Ecuador, for instance, the Pueblo Originario Kichwa de Sarayaku successfully protected their ancestral lands from oil companies, partly because courts upheld their right to free, prior, and informed consent (FPIC). This international standard is articulated in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which mandates that governments secure Indigenous nations’ informed consent for projects and policies that could affect them, free from coercion and well in advance of any potential impacts.

Despite these global precedents, tribal efforts to codify FPIC into law in the U.S. have consistently faltered. Federally, President Barack Obama’s 2011 definition of FPIC as "meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders," effectively stripped the concept of its core meaning: consent. 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. Yet, in a move Indigenous leaders widely condemned as a "betrayal," Inslee controversially vetoed the entire section on tribal consent when signing the bill into law.

The resistance to FPIC is often fueled by political actors advocating for corporate interests, who frequently characterize the right to consent as granting "veto power" over development projects. Supporters of Indigenous sovereignty vigorously contest this right-wing framing, arguing that consent is not a veto but a fundamental human right, essential for building durable and co-governed projects. A case study by the Atlas Network and Macdonald-Laurier Institute, conservative think tanks, highlighted the "legal and economic disruptions" that could potentially follow the implementation of FPIC in Canada, revealing the profound anxieties surrounding this principle within pro-development circles. Further exacerbating these challenges, the Trump administration has been actively fast-tracking data center development and resource extraction while demonstrably failing to meet statutory consultation requirements for decisions affecting Indian Country.

Against this backdrop of powerful opposing forces, 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 delivered a blunt assessment of the odds. "Consent is not happening any time soon, and I’ll tell you why," she stated, "In the U.S., private property is a religion." Shellenberger, witnessing the ongoing erosion of his people’s heritage, expresses profound weariness at the expectation for tribes to perpetually compromise. "How long will it take until everything that we know is in a box sitting in a museum collecting dust?" he asks, emphasizing that the fight for cultural heritage is not merely an option but an imperative for Indigenous people. His ultimate hope transcends mere preservation; it is a yearning for the continuity of identity and belonging. "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.’" This profound desire underscores the enduring human cost of a system that prioritizes progress over patrimony, and development over the deep-seated cultural connections that bind Indigenous peoples to their ancestral lands.