In the rapidly expanding urban footprint of southwest Washington, where the metropolitan sprawl of Portland and Seattle-Tacoma increasingly converges, a critical struggle for cultural survival is unfolding in Cowlitz County. Here, Jon Shellenberger, an archaeologist and the director of the Cowlitz Indian Tribe’s cultural resources department, who is of Yakama, Cowlitz, and Wintu descent, stands at the forefront of efforts to safeguard his great-great-grandmother’s ancestral village site from relentless development pressures along the vital I-5 corridor. Shellenberger asserts that the proposed construction is fundamentally incompatible with the profound historical and spiritual significance of the site, yet the prevailing state permitting system inherently favors development over preservation. He observes that while developers can engage archaeologists to facilitate the removal of artifacts for museum exhibition or repatriation to tribes, such processes utterly fail to capture "the blood, sweat and tears in the soil," severing the living connection to ancestral lands.

To Shellenberger, this system is not merely procedural; it actively contributes 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, and other state agencies to disturb archaeological finds, albeit under specific conditions set by DAHP itself. Alternatively, the department can encourage project redesigns to avoid sensitive archaeological resources during construction. A crucial condition often stipulated by DAHP is tribal consultation, particularly when the land is known to contain Indigenous artifacts. The DAHP has earned a commendable reputation for diligently incorporating tribal concerns into its processes, standing out among state agencies nationwide.

"Washington is very progressive compared to other states in the nation when it comes to archaeological protections and tribal concerns," affirms Jackie Ferry, a non-Native archaeologist who serves as the Samish Indian Nation’s Tribal Historic Preservation Officer (THPO). She further explains that the department frequently withholds permits until tribal concerns have been adequately addressed, a testament to their commitment within the existing legal framework. This reputation for proactive engagement is not confined to Washington; it garners national recognition, especially regarding the leadership of State Historic Preservation Officer (SHPO) Allyson Brooks, who heads the department. Valerie Grussing, executive director of the National Association of Tribal Historic Preservation Officers, unequivocally states, "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." This sentiment is echoed by Indigenous archaeologists and tribal employees alike, who consistently report positive working relationships with Brooks and her dedicated team. Shellenberger himself praises them as "amazing staff" who ensure that permittees genuinely engage with tribal entities.

However, a critical paradox emerges, one that experts, including Brooks herself, openly acknowledge: a permit, by its very nature, does not inherently protect artifacts. Instead, it meticulously outlines the precise conditions under which these irreplaceable cultural resources can be damaged, removed, or even destroyed. "The end result is project delivery," Brooks candidly shared, emphasizing the systemic limitations. Brooks, who assumed her role in 1999 and is one of the nation’s longest-serving SHPOs, attributes this fundamental flaw to the department’s inherent lack of "authority to protect those resources" outright. Across Washington, and indeed the broader Pacific Northwest, industrial expansion and infrastructure projects relentlessly encroach upon Indigenous historical sites. Despite DAHP’s status as a leading archaeological department, even its progressive approach cannot fully safeguard the archaeological heritage of tribal nations. A comprehensive review of hundreds of permit applications filed with DAHP since 2000, obtained through public records requests, reveals a stark reality: the department has approved an overwhelming 99.55% of permit applications over the past quarter-century, denying a mere four. Tribal historic preservation officers, legal experts, archaeologists, and state officials unanimously confirm that this outcome is by design; the system is structured to bypass a critical and often overlooked concept known as free, prior, and informed consent (FPIC).

"The law doesn’t really protect," Ferry observes, highlighting the core dilemma. "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 fundamental distinction between impact consideration and outright protection underscores the systemic challenge faced by Indigenous communities striving to preserve their ancestral heritage.

Shellenberger traces the roots of this systemic problem back to the Antiquities Act of 1906. This landmark legislation, enacted primarily to curb the rampant looting and vandalism of Indigenous village sites and cultural treasures, granted the U.S. President the sweeping power to establish national monuments. While seemingly protective, the act paradoxically solidified the federal government’s authority over structures and artifacts on federal lands, often without any requirement to acknowledge tribal authority or interest. This approach, reflecting the prevailing colonial mindset of the era, bore the signature of President Theodore Roosevelt, whose notorious views on Indigenous peoples (“the only good Indians are the dead Indians”) starkly illustrate the prevailing disregard for Native sovereignty and cultural rights. Shellenberger laments that "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, pottery, and entire village sites were historically viewed through a Western scientific lens as mere "relics of the past" intended for academic study. This perspective not only legitimized the burgeoning field of archaeology, often dominated by non-Native practitioners, but also effectively sidelined tribal nations, granting external authorities undue power over their own cultural heritage. "That was by design. We were expected to go extinct," Shellenberger asserts, reflecting on the historical erasure inherent in these policies.

Six decades after the Antiquities Act, the federal government enacted the National Historic Preservation Act (NHPA) in 1966, aiming to establish "a system of procedural protections" for archaeological and historic resources. While the NHPA created the office of the State Historic Preservation Officer (SHPO) and corresponding Tribal Historic Preservation Officers (THPOs) to facilitate consultation, its capacity to offer substantial, legally binding protection for tribal nations remains ambiguous. A salient example of this limitation occurred in Wampanoag country in 2009, where tribal nations successfully demonstrated the entire Nantucket Sound’s eligibility for NHPA protections, yet were ultimately unable to prevent wind developers from receiving federal permits to construct a massive energy project there. This case vividly illustrates that even when cultural significance is legally recognized, it does not automatically translate into a mandate for preservation.

At the state level, DAHP mandates that developers meticulously document any archaeological resources—including those of tribal significance—on a project site before construction can commence. The department then utilizes this crucial information to recommend mitigation measures designed to minimize, or compensate for, the damage, removal, or destruction of artifacts. However, a fundamental flaw in this system is that neither tribal nations nor DAHP possess the ultimate legal authority to unilaterally halt a project, irrespective of the magnitude of the threat it poses to irreplaceable archaeological resources. "Avoidance is not mandatory," Brooks confirmed via email, underscoring that while impacts necessitate a mitigation permit, stopping the project altogether is beyond their statutory power.

These mitigation permits often rely on land surveys funded directly by the developer and conducted by commercial archaeological consulting companies hired by those same developers. This arrangement creates an inherent conflict of interest. A 2024 investigative report by HCN and ProPublica exposed how a team of contract archaeologists, operating under developer commission, deliberately omitted over a dozen cultural resources from their land survey at a sacred Wenatchi-P’squosa site targeted for a solar field. Shellenberger notes that developers frequently exert pressure on these consultants to undercount archaeological resources, a practice he describes as having become "rampant and common" in recent decades. Should a contractor indeed undercount these resources, a site’s true historical and cultural scope may only become apparent once excavation begins, by which point, it is tragically too late to preserve it undisturbed. While DAHP can require insufficient land surveys to be redone to meet state standards, for example by demanding more detail or adjusting project boundaries, Brooks acknowledges the department’s limited power: "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 is triggered between the affected tribal government and the relevant state and federal agencies. However, the efficacy of this consultation hinges entirely on the good faith of all parties involved. Even if tribes are afforded the opportunity to articulate their profound grievances and concerns, there is no guarantee that their input will be heeded or acted upon. If consultation devolves into a mere box-checking exercise designed to pave the way for permits, tribal governments find themselves with minimal 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 laments. Brooks starkly summarizes the situation: "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 when a proposed project falls within reservation lands, though even this sovereign authority faces ongoing challenges, with the federal government currently working to undermine tribal nations’ control over such projects.

Beyond the legal limitations, the sheer volume of consultation requests places an immense strain on already under-resourced 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 forced into an agonizing triage, compelled to focus their limited resources only on the most significant and immediately threatened sites, knowing that countless others may be lost without adequate attention. This capacity crisis 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." For instance, in recent years, the Confederated Tribes and Bands of the Yakama Nation have been inundated with a deluge of proposals for industrial-scale renewable energy projects, forcing them to divert precious resources to manage the largest and most culturally impactful developments, sometimes even resorting to litigation to secure wildlife protections where Indigenous human rights protections are demonstrably lacking. Shellenberger passionately argues that Indigenous people should never be forced to choose which irreplaceable heritage sites they fight to protect. "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 countries that have formally affirmed Indigenous peoples’ inherent right to give or withhold their free, prior, and informed consent (FPIC) to development projects impacting their traditional lands and territories possess more robust legal mechanisms for safeguarding cultural resources. For example, Indigenous communities like the Pueblo Originario Kichwa de Sarayaku in Ecuador successfully defended their lands from encroaching oil companies, partly because their right to consent was legally upheld by national courts. This internationally recognized standard is enshrined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which mandates that governments secure the informed consent of Indigenous nations 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 and failure at both federal and state levels.

The closest federal law has come 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 reinterpretation that effectively stripped consent of its true meaning. More recently, in 2020, tribal leaders in Washington state successfully negotiated for state-level FPIC protections to be included in Governor Jay Inslee’s Climate Commitment Act, in exchange for their crucial support for the bill. Yet, when it came time to sign the legislation into law, Governor Inslee exercised his veto power over the entire section pertaining to tribal consent, an act many Indigenous leaders denounced as a profound betrayal. The concept of FPIC frequently alarms political actors aligned with corporate interests, who often mischaracterize the right to consent as granting "veto power" over development projects. However, proponents of Indigenous sovereignty and human rights strongly contest this right-wing framing, arguing that consent is not about obstruction, but about establishing respectful partnerships and ensuring equitable decision-making, which ultimately leads to more durable and sustainable co-governed projects. A case study from the Atlas Network, a proponent of free-market principles, and the conservative Macdonald-Laurier Institute, ominously warned of the "legal and economic disruptions that may have followed" from implementing FPIC in Canada, underscoring the powerful economic interests arrayed against this principle.

Further exacerbating the challenge, the Trump administration has actively pursued policies to fast-track data center development and resource extraction, often while failing to meet statutory consultation requirements on decisions directly affecting Indian Country. Faced with such formidable forces, the battle for tribal nations to secure the right to consent remains an arduous uphill climb. At a 2023 tribal renewable energy summit, hosted by DAHP to foster dialogue among tribal nations, industrial developers, and state government, Allyson Brooks offered 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 expresses profound weariness with tribes constantly being forced to 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 their cultural heritage is not merely an option but an existential 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 poignant plea underscores the enduring human desire to connect with one’s ancestral roots and the devastating impact of cultural erasure on future generations.