Shellenberger views this permitting mechanism as a systematic erasure of the Indigenous footprint on the landscape, a stark reflection of a larger, deeply embedded challenge within national heritage protection frameworks. 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 resources, albeit under specific conditions set by the department. Alternatively, DAHP may encourage avoidance of these resources during construction. A common condition, particularly when Indigenous artifacts are known to exist, is tribal consultation. The department, and particularly its State Historic Preservation Officer (SHPO) Allyson Brooks, has garnered a national reputation for seriously considering tribal concerns, distinguishing Washington as a more progressive state in archaeological protections. Jackie Ferry, a non-Native archaeologist and the Samish Indian Nation’s tribal historic preservation officer, confirms this, noting that DAHP frequently withholds permits until tribal concerns are adequately addressed. Valerie Grussing, executive director of the National Association of Tribal Historic Preservation Officers, unequivocally states that Brooks is “objectively the best SHPO in the nation for tribes,” a sentiment echoed by Indigenous archaeologists and tribal employees who commend the positive working relationships and the department’s commitment to ensuring permittees engage with tribes.

Despite these commendations, a fundamental paradox persists: experts, including Brooks herself, acknowledge that a permit does not genuinely protect artifacts. Instead, it merely outlines the parameters under which these irreplaceable cultural assets can be damaged, removed, or even destroyed. Brooks, one of the nation’s longest-serving SHPOs, having joined the department in 1999, candidly admits that the department’s ultimate goal is “project delivery” because it fundamentally “lacks the authority to protect those resources.” This critical limitation highlights a systemic flaw where even the most well-intentioned and effective state agencies are hamstrung by legal frameworks that prioritize development outcomes over the preservation of Indigenous heritage.

Across Washington state, and indeed the broader Pacific Northwest, industrial expansion and urban growth relentlessly threaten tribal cultural resources as construction proposals increasingly encroach upon ancestral Indigenous historical sites. Even with Washington’s archaeology department standing among the nation’s best, it remains largely incapable of fully safeguarding the archaeological heritage of tribal nations. A comprehensive review of hundreds of permit applications filed with DAHP since 2000, obtained through a public records request, reveals a stark reality: the department has approved an overwhelming 99.55% of permit 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 flaw but a feature of a system deliberately designed to avoid a pivotal yet often overlooked concept: free, prior, and informed consent (FPIC). As Ferry articulates, “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 roots of this systemic imbalance can be traced back to early 20th-century legislation, particularly the Antiquities Act of 1906. While initially conceived to curb the rampant looting and vandalism of Indigenous village sites, this act paradoxically centralized federal authority over structures and artifacts on federal lands, often without any mandatory acknowledgment of tribal authority or interest. This legislation bears the signature of President Theodore Roosevelt, whose notorious quote about “the only good Indians are the dead Indians” underscores the prevailing colonial mindset of the era. Shellenberger asserts that tribes have been relentlessly fighting for their voices to be heard regarding the protection of archaeological resources since this period, if not longer. He further explains that artifacts like pottery and entire village sites were then viewed predominantly as “relics of the past and were for Western scientific learners,” a perspective that legitimized the burgeoning field of archaeology, frequently sidelining tribal nations and granting primarily non-Native archaeologists immense power over Indigenous cultural heritage. This marginalization, Shellenberger contends, was by design, predicated on the false expectation that Indigenous cultures would eventually go extinct.

Decades later, in 1966, the federal government enacted the National Historic Preservation Act (NHPA), intended to establish “a system of procedural protections” for archaeological resources. However, the efficacy of this legislation in offering substantial protection for tribal nations remains deeply questionable. A prominent example occurred in Wampanoag country in 2009, where tribal nations successfully demonstrated that the entirety of Nantucket Sound was eligible for NHPA protections, yet they were ultimately powerless to prevent wind developers from receiving federal permits for construction. The NHPA did establish the office of the State Historic Preservation Officer (SHPO), currently held by Brooks, and created roles for tribal counterparts to liaise with SHPOs, fostering a framework for consultation rather than outright protection.

At the state level, DAHP mandates that developers document any archaeological resources, including tribal ones, on a project site before construction begins. This information then informs the department’s recommendations for mitigation measures, which aim to either minimize or compensate for damaging, removing, or destroying artifacts. Crucially, neither tribal nations nor DAHP possess the legal authority within this system to halt a project outright, regardless of the severity of the threat it poses to archaeological resources. Brooks explicitly states via email, “Avoidance is not mandatory, but if you impact an archaeological site you need a mitigation permit.” These permits rely heavily on land surveys, typically funded by the developer and conducted by commercial archaeological consulting companies hired by the developer. This arrangement creates a significant conflict of interest, as evidenced by a 2024 investigation by HCN and ProPublica, which uncovered instances where contract archaeologists, working for a developer, omitted over a dozen cultural resources from a land survey at a sacred Wenatchi-P’squosa site targeted for a solar field.

Developers, as Shellenberger notes, may exert subtle or overt pressure on these consultants to undercount archaeological resources, a practice he describes as having become “rampant and common” in recent decades. If a contractor intentionally or unintentionally undercounts these resources, the site might reveal a much larger scope of heritage once excavation commences, but by then, it is often too late to preserve it undisturbed. While DAHP can send contract archaeologists back into the field if a submitted survey is deemed insufficient, requiring more detail or adjusted project boundaries, Brooks clarifies that if the archaeologist provides a "professionally standard methodology, a good scope of work," the department is legally bound to issue the permit, lacking the authority to make independent judgments that would outright protect the site.

When a development is proposed on a known tribal archaeological site, a consultation process is triggered between the tribal government and relevant state and federal agencies. However, this consultation heavily relies on the good faith of all parties involved; even if tribes voice their grievances, there is no guarantee that their concerns will translate into project alterations or cessation. If consultation merely serves as a procedural checkbox en route 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 reinforces this stark reality: “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 typically applies to projects on reservation lands, though even this sovereign authority is currently facing attempts at federal undermining.

The sheer volume of development proposals also places an enormous strain on tribal staff and resources. Shellenberger reports receiving “over 300 pieces of consultation a month” with only “one or two reviewers,” highlighting a severe “capacity-building” hurdle. Consequently, tribal leaders are often forced into a difficult triage, prioritizing only the most immediately threatened and culturally significant sites. This issue 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.” In recent years, the Confederated Tribes and Bands of the Yakama Nation, for example, have been inundated with industrial-scale renewable energy proposals, forcing them to divert scarce resources to litigate wildlife protections where Indigenous human rights protections are demonstrably lacking. Shellenberger passionately argues that Indigenous people should not be compelled to choose which heritage sites they fight for, emphasizing that the goal is to protect “all this land, all these resources, in perpetuity.” He warns that if tribes are forced to bargain with what they can attend to, invaluable heritage will inevitably be lost.

A stark contrast emerges when examining other nations that have affirmed Indigenous peoples’ inherent right to give or withhold their consent to development impacting their traditional lands and territories. In such contexts, Indigenous communities possess more robust legal tools for protecting their cultural and environmental resources. For instance, the Pueblo Originario Kichwa de Sarayaku in Ecuador successfully defended their lands against trespassing oil companies, partly because courts upheld their right to free, prior, and informed consent. This principle is enshrined 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, ensuring it is free of coercion and obtained well before any impacts occur. However, in the United States, tribal efforts to codify FPIC into law have consistently faced significant obstacles 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,” effectively stripping the “consent” from FPIC. More recently, in 2020, tribal leaders in Washington state successfully negotiated for state-level FPIC protections within Governor Jay Inslee’s Climate Commitment Act, in exchange for their support of the bill. Yet, upon signing the legislation into law, Inslee vetoed the entire section pertaining to tribal consent, an act that many Indigenous leaders characterized 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 Indigenous communities a “veto power” over crucial development projects. Conversely, many supporters of Indigenous sovereignty and human rights argue that framing consent as a “veto” fundamentally misrepresents it as a power grab rather than an inherent human right to self-determination and cultural preservation. 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.

The current political climate further complicates this struggle. The Trump administration has actively fast-tracked data center development and resource extraction while simultaneously failing to meet statutory consultation requirements for decisions impacting Indian Country. Amidst such formidable opposition, 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 stark assessment of the odds: “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, expressing profound weariness with the persistent need for tribes to compromise, 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 emphasizes that the fight for cultural heritage is not an option but a sacred obligation for Indigenous people, driven by an unwavering desire to ensure that future generations, even those he will never meet, will know their origins and be able to return to ancestral lands to declare, “This is my blood and where it runs.”