In the rapidly expanding urban landscape of southwest Washington, where the metropolitan sprawl of Portland and Seattle-Tacoma increasingly converges within Cowlitz County, a critical battle is unfolding over the preservation of Indigenous cultural heritage. At the heart of this struggle is Jon Shellenberger, an enrolled member of the Yakama, Cowlitz, and Wintu tribes, who serves as the cultural resources director for the Cowlitz Indian Tribe. Shellenberger is leading efforts to safeguard the ancestral village site of his great-great-grandmother from encroaching development along the crucial I-5 corridor. He asserts that the proposed construction is fundamentally incompatible with the profound historical and spiritual significance of the site, yet he faces a state permitting system that, by design, often favors development over protection. “You can go in and hire an archaeologist to complete the permit for you to remove that archaeology and take it to a museum or give it back to the tribe,” Shellenberger explained, highlighting a process that, in his view, fails to capture the intangible yet vital essence of the land. “But what that does not capture is the blood, sweat and tears in the soil.”

Shellenberger views the current permitting framework as a mechanism for “erasing a part of our footprint on the landscape.” While the Washington Department of Archaeology and Historic Preservation (DAHP) possesses the authority to issue permits for disturbing artifacts, it does so under specific conditions that it establishes. The department can also encourage developers, private landowners, or other state agencies to avoid archaeological resources during construction. A key condition often involves tribal consultation, particularly when the land is known to contain Indigenous artifacts. DAHP has earned a commendable reputation for seriously considering tribal concerns, a stance that sets it apart from many other state agencies across the nation.

“Washington is very progressive compared to other states in the nation when it comes to archaeological protections and tribal concerns,” affirmed Jackie Ferry, a non-Native archaeologist and the Samish Indian Nation’s tribal historic preservation officer. “They frequently won’t issue the permit until the tribe’s concerns are addressed.” This positive reputation extends nationally, largely attributed to State Historic Preservation Officer (SHPO) Allyson Brooks, who leads the department. Valerie Grussing, executive director of the National Association of Tribal Historic Preservation Officers, unequivocally stated, “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.” Indigenous archaeologists and tribal employees widely echo this sentiment, describing productive working relationships with Brooks and her dedicated team. “They’re amazing staff,” Shellenberger added, “They make sure that the permittees are engaging with the tribes.”

Despite this acknowledged diligence, experts including Brooks herself concede a critical point: a permit fundamentally dictates the conditions under which artifacts can be damaged, removed, or destroyed, rather than providing genuine protection. “The end result is project delivery,” Brooks, one of the nation’s longest-serving SHPOs, noted. She elaborated that this limitation stems from the department’s inherent lack of “authority to protect those resources” outright.

Across Washington, the relentless march of industrial development poses an escalating threat to tribal cultural resources, with construction proposals increasingly encroaching upon ancient Indigenous sites. Even with one of the nation’s most progressive archaeology departments, the current system struggles to adequately 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, revealed a stark reality: the department approved an overwhelming 99.55% of applications over the past quarter-century, denying only four. Tribal historic preservation officers, tribal attorneys, archaeologists, and state officials all concur that this outcome is an intrinsic feature of the system’s design—a design built to circumvent a crucial, yet often overlooked, international standard known as free, prior and informed consent (FPIC).

“The law doesn’t really protect,” Ferry emphasized. “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 impact consideration and outright protection forms the bedrock of the ongoing conflict.

Shellenberger traces the root of this systemic issue back to the Antiquities Act of 1906. While initially conceived to curb the rampant looting and vandalism of Indigenous village sites, the legislation simultaneously established the federal government as the paramount authority over structures and artifacts on federal lands. Critically, it did so without any mandate to acknowledge tribal authority or interest, a legacy imbued with the colonial attitudes of the era, notably bearing the signature of President Theodore Roosevelt, whose views on Indigenous peoples were notoriously hostile. “Tribes have been fighting to have their voices heard regarding the protection of archaeological resources since 1906, easy — probably longer,” Shellenberger asserted. He further explained that artifacts, such as pottery and village sites, were historically viewed through a Western scientific lens as mere “relics of the past” 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 experts power over their own cultural heritage. “That was by design. We were expected to go extinct,” Shellenberger stated, reflecting on the historical intent behind such policies.

Six decades later, the federal government enacted the National Historic Preservation Act (NHPA) to establish “a system of procedural protections” for archaeological resources. However, its effectiveness in offering substantial protection for tribal nations remains ambiguous. For instance, in 2009, tribal nations in Wampanoag country successfully demonstrated that the entirety of Nantucket Sound was eligible for NHPA protections, yet this designation ultimately failed to prevent wind developers from receiving federal permits to construct there. The NHPA did, however, establish the offices of State Historic Preservation Officers, like Allyson Brooks, and their tribal counterparts, Tribal Historic Preservation Officers (THPOs), to facilitate liaison and consultation.

At the state level, DAHP mandates that developers meticulously document any archaeological resources—including tribal ones—on a project site before construction commences. This information then informs the department’s recommendations for mitigation measures, which aim to either 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. “Avoidance is not mandatory,” Brooks clarified in an email, “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 directly by the developer. This arrangement presents a significant conflict of interest. A 2024 investigation by HCN and ProPublica, for example, uncovered a case where a team of contract archaeologists, employed by a developer, omitted over a dozen cultural resources from their land survey at a Wenatchi-P’squosa sacred site earmarked for a solar field. Developers, Shellenberger noted, may exert pressure on consultants to undercount archaeological resources, a practice he described as having become “rampant and common” in recent decades. If a contractor deliberately underestimates the extent of such resources, a site could prove far more significant once excavation begins, but by then, the opportunity to leave it undisturbed has often passed.

Should a land survey submitted with a permit application be deemed insufficient, DAHP can compel the contract archaeologist to redo it until it adheres to state standards. This might involve requiring more detailed information or proposing minor adjustments to project boundaries to avoid particularly sensitive areas. However, Brooks emphasized the department’s inherent limitation: “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 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 if tribes are afforded the opportunity to voice their grievances and concerns, there is no guarantee that these will be genuinely heeded or acted upon. If consultation devolves into a mere box-ticking exercise on the path to permit approval, tribal governments find themselves with limited 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 reiterated.

Brooks succinctly summarized the core imbalance: “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 existing exception to this rule applies when a proposed project is situated on reservation lands, though even this sovereign authority is currently facing challenges, with efforts by the federal government to undermine tribal nations’ control over such projects. Beyond the issue of legal authority, the sheer volume of consultation requests places an enormous strain on tribal staff. “The volume is enormous. We get over 300 pieces of consultation a month. We have one or two reviewers,” Shellenberger explained, highlighting the significant “capacity-building” hurdle. Consequently, tribal leaders are often forced to triage, dedicating their limited resources to only the most critical sites.

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 deluge forces them to allocate precious resources to the largest and most culturally threatening endeavors, sometimes compelling them to litigate for wildlife protections where more direct Indigenous human rights protections are conspicuously absent. This capacity 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.” Shellenberger passionately argues that Indigenous people should not be compelled to choose which heritage sites they fight to preserve. “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, several other nations have affirmed Indigenous peoples’ right to give or withhold their consent for developments impacting their traditional lands and territories, thereby providing more robust tools for resource protection. A notable example is the Pueblo Originario Kichwa de Sarayaku in Ecuador, whose Indigenous community successfully protected their lands from trespassing oil companies, in part because the courts upheld their fundamental right to consent. This vital standard is enshrined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which mandates that governments secure the free, prior, and informed consent of Indigenous nations 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 largely faltered at both the federal and state levels.

The closest federal law has come to addressing this issue was in 2011, when President Barack Obama controversially defined FPIC as “meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders”—effectively stripping the concept of its core meaning: consent. More recently, in 2020, tribal leaders in Washington state successfully negotiated for state-level FPIC protections within Governor Jay Inslee’s Climate Commitment Act, offering their support for the bill in return. Yet, when the time came to sign the legislation into law, Governor Inslee vetoed the entire section pertaining to tribal consent, an act many Indigenous leaders denounced as a profound betrayal.

The concept of FPIC frequently sparks apprehension among political actors aligned with corporate interests, who often characterize the right to consent as granting “veto power” over development projects. However, many proponents of Indigenous sovereignty actively challenge this right-wing framing, asserting that consent is not merely a veto but a fundamental human right and a cornerstone for building durable, co-governed projects. A case study from the Atlas Network, a proponent of free-market principles, and the Macdonald-Laurier Institute, a conservative think tank, underscored the perceived threat, stating, “It is difficult to overstate the legal and economic disruptions that may have followed” from implementing FPIC in Canada.

Compounding these challenges, the Trump administration has been actively fast-tracking data center development and resource extraction while simultaneously failing to meet statutory consultation requirements on decisions impacting Indian Country. Against such formidable 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 among tribal nations, industrial developers, and state government, Allyson Brooks offered 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, weary of the continuous expectation for tribes to compromise, posed a poignant question: “How long will it take until everything that we know is in a box sitting in a museum collecting dust?” He underscored that fighting for their cultural heritage is not an optional endeavor 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.’” The ongoing struggle in Washington is a microcosm of a broader national and global challenge, where the intrinsic value of Indigenous heritage often clashes with the relentless demands of modern development and entrenched legal frameworks.