For Shellenberger and countless Indigenous communities, this permitting mechanism represents more than mere administrative procedure; it is a systematic erasure of their historical presence and enduring connection to the land. Washington’s Department of Archaeology and Historic Preservation (DAHP) holds the critical authority to issue permits allowing developers, private landowners, or other state agencies to disturb archaeological artifacts. While DAHP sets specific conditions for such disturbances, or encourages developers to sidestep sensitive areas during construction, its mandate often falls short of outright protection. A common condition, particularly when Indigenous artifacts are known to be present, involves tribal consultation. Indeed, DAHP has earned a reputation, both statewide and nationally, for taking tribal concerns seriously within the confines of its existing powers.

Jackie Ferry, a non-Native archaeologist and the Samish Indian Nation’s tribal historic preservation officer, attests to Washington’s comparatively progressive stance. "Washington is very progressive compared to other states in the nation when it comes to archaeological protections and tribal concerns," Ferry notes. "They frequently won’t issue the permit until the tribe’s concerns are addressed." This sentiment is widely echoed by Indigenous archaeologists and tribal employees who commend the positive working relationships with DAHP and its leadership, particularly State Historic Preservation Officer (SHPO) Allyson Brooks. Brooks, one of the nation’s longest-serving SHPOs, who joined the department in 1999, has been lauded by Valerie Grussing, executive director of the National Association of Tribal Historic Preservation Officers, as "objectively the best SHPO in the nation for tribes." Shellenberger himself praises the "amazing staff" at DAHP for ensuring "that the permittees are engaging with the tribes."

Yet, despite this commendable dedication and collaborative spirit, a fundamental flaw persists, one that Brooks herself readily acknowledges: a permit, by its very nature, does not protect artifacts. Instead, it meticulously outlines the precise conditions under which these irreplaceable cultural resources can be damaged, removed, or utterly destroyed. "The end result is project delivery," Brooks candidly stated in an interview, explaining that the department fundamentally lacks the "authority to protect those resources." This candid admission underscores a pervasive paradox: even the most well-intentioned state agencies, operating within a legislative framework that prioritizes economic development, find themselves unable to halt the incremental dismantling of Indigenous heritage.

Across Washington, the relentless march of industrial expansion continues to threaten tribal cultural resources, as construction proposals increasingly encroach upon sites of immense historical and spiritual significance. Despite DAHP’s status as a leading state archaeology department, even its proactive efforts cannot definitively safeguard the archaeological patrimony of tribal nations. A comprehensive review of hundreds of permit applications filed with DAHP since 2000, obtained through public records, reveals a stark reality: the department has approved an astonishing 99.55% of permit applications over the past quarter-century, denying a mere four. Tribal historic preservation officers, legal experts specializing in Indigenous law, archaeologists, and state officials unanimously confirm that this outcome is not accidental; it is an inherent function of a system deliberately designed to circumvent a crucial, yet often overlooked, international standard: Free, Prior and Informed Consent (FPIC).

"The law doesn’t really protect," Ferry asserts, summarizing the core issue. "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 "considering impacts" and "protecting" is pivotal, revealing a regulatory philosophy that manages destruction rather than preventing it.

Shellenberger traces the genesis of this problem back to the Antiquities Act of 1906. While ostensibly enacted to curb the rampant looting and vandalism of Indigenous village sites, this landmark legislation also enshrined the federal government as the ultimate authority over structures and artifacts on federal lands. Crucially, it did so without any obligation to acknowledge or incorporate tribal authority or interests. This act, signed by President Theodore Roosevelt—a figure infamously associated with the callous phrase "the only good Indians are the dead Indians"—set a precedent that systematically sidelined Indigenous voices. "Tribes have been fighting to have their voices heard regarding the protection of archaeological resources since 1906, easy — probably longer," Shellenberger emphasizes, highlighting a century-long struggle for recognition and self-determination over their own cultural heritage.

He further explains that early archaeological practices, influenced by a colonial mindset, viewed artifacts like pottery and ancient village sites primarily as "relics of the past" suitable for "Western scientific learners." This perspective not only legitimized the nascent field of archaeology but also, by design, conferred power over tribal cultural heritage to archaeologists, who were frequently non-Native. This deliberate exclusion was part of a broader societal expectation, Shellenberger grimly notes, that Indigenous populations were "expected to go extinct."

Six decades later, the federal government enacted the National Historic Preservation Act (NHPA) of 1966, aiming to establish "a system of procedural protections" for archaeological resources. The NHPA introduced the roles of State Historic Preservation Officer (SHPO) and Tribal Historic Preservation Officer (THPO) to facilitate engagement. However, despite its intentions, the legislation’s practical efficacy in substantially protecting tribal nations remains debatable. A striking example occurred in Wampanoag country in 2009, 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 securing federal permits to construct a large-scale project there. The NHPA, while a step forward, ultimately enshrined a framework of "consultation" rather than "consent," a distinction with profound implications for Indigenous sovereignty.

At the state level, DAHP mandates that developers document all archaeological resources—including tribal ones—on a project site prior to any construction. This information then informs DAHP’s recommendations for "mitigations," which aim to either minimize or compensate for the damage, removal, or destruction of artifacts. However, a critical limitation remains: neither tribal nations nor DAHP possess the legal authority to unilaterally halt a project, regardless of the severity of the threat it poses to archaeological resources. "Avoidance is not mandatory," Brooks confirmed via email, "but if you impact an archaeological site you need a mitigation permit."

These mitigation permits often rely on land surveys paid for by the developer and conducted by commercial archaeological consulting companies, creating an inherent conflict of interest. A 2024 investigation by HCN and ProPublica uncovered a troubling instance where a team of contract archaeologists, hired by a developer, deliberately omitted over a dozen cultural resources from their land survey at a sacred Wenatchi-P’squosa site, where the developer intends to build a solar field. Shellenberger describes this practice of developers pressuring consultants to undercount archaeological resources as "rampant and common" in recent decades. The insidious consequence is that a site, once digging commences, may reveal a much larger scope of archaeological significance, but by then, the opportunity to leave it undisturbed is irrevocably lost.

While DAHP does send contract archaeologists back to the field if a submitted land survey is deemed insufficient, requiring more detail or a boundary adjustment, its authority is circumscribed. "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," Brooks explains.

When a development is proposed on a known tribal archaeological site, it triggers a formal consultation process between the tribal government and the relevant state and federal agencies. However, this consultation, while mandated, fundamentally relies on the good faith and genuine willingness of all parties to listen and compromise. Too often, it devolves into a mere "box-checking exercise," a procedural hurdle to overcome on the path to permit approval. Even when tribes vociferously articulate their grievances and concerns, there is no guarantee that their input will lead to a substantive change in project plans. "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 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 directly on reservation lands, though even here, federal efforts, particularly under certain administrations, have sought to undermine tribal nations’ sovereign authority over such developments. 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 details, highlighting the severe "capacity-building" hurdles faced by tribal nations. This forces tribal leaders into an agonizing triage, compelling them to prioritize only the most immediately threatened and culturally significant sites, knowing that countless others may be lost without intervention.

In recent years, the Confederated Tribes and Bands of the Yakama Nation, for example, have been inundated with a surge of development proposals for industrial-scale renewable energy projects. This "green colonialism," as some Indigenous leaders term it, forces them to divert precious resources to battle the largest and most culturally destructive projects, sometimes even resorting to litigation for wildlife protections where explicit Indigenous human rights protections are lacking. 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," creating an unequal playing field. Shellenberger passionately argues that Indigenous people should never 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."

In stark contrast, other nations globally have affirmed Indigenous peoples’ right to give or withhold their Free, Prior and Informed Consent (FPIC) to development impacting their traditional lands and territories, providing more robust tools for cultural preservation. The Pueblo Originario Kichwa de Sarayaku in Ecuador, for instance, successfully leveraged their right to consent to protect their ancestral lands from encroaching oil companies, a victory upheld by international courts. This critical 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 it is free of coercion and obtained well in advance of any potential impacts. However, in the United States, efforts to codify FPIC into law have consistently faltered at both federal and state levels.

The closest federal law came 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 the "consent" from FPIC. More recently, in 2020, tribal leaders in Washington successfully negotiated for state-level FPIC protections within Governor Jay Inslee’s Climate Commitment Act, in exchange for their crucial support for the bill. Yet, in a move widely characterized by Indigenous leaders as a "betrayal," Governor Inslee vetoed the entire section on tribal consent when he signed the bill into law.

The concept of FPIC often generates significant resistance from political actors aligned with corporate interests, who frequently characterize the right to consent as granting Indigenous communities "veto power" over development projects. However, many supporters of Indigenous sovereignty vehemently dispute this right-wing framing, arguing that consent is not a veto but a fundamental human right, fostering equitable partnerships and leading to more durable, co-governed projects. A case study from the Atlas Network and Macdonald-Laurier Institute, both conservative think tanks, highlighted "the legal and economic disruptions that may have followed" from implementing FPIC in Canada, underscoring the powerful economic forces arrayed against its adoption. Adding to these challenges, the Trump administration has been actively fast-tracking data center development and resource extraction while simultaneously failing to meet statutory consultation requirements for decisions impacting Indian Country.

Against this backdrop of formidable opposition, winning the right to consent remains an arduous uphill battle for tribal nations. At a 2023 tribal renewable energy summit, hosted by DAHP to facilitate 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."

Jon Shellenberger, however, expresses profound weariness with the incessant demand for tribes to yield. "How long will it take until everything that we know is in a box sitting in a museum collecting dust?" he asks, his words conveying a deep sense of urgency and despair. He emphasizes that the fight for their cultural heritage is not merely an option for Indigenous people; it is 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.’" His words resonate as a powerful testament to the enduring intergenerational connection to ancestral lands and the unwavering commitment to cultural continuity, even as the forces of unchecked development continue to encroach upon the very ground beneath their feet.