For Shellenberger and many Indigenous leaders, this permitting mechanism amounts to an insidious form of "erasing a part of our footprint on the landscape." The Washington Department of Archaeology and Historic Preservation (DAHP), the state agency vested with the authority to oversee archaeological resources, holds the power to permit developers, private landowners, or other state agencies to disturb artifacts. While DAHP can impose specific conditions, including mandatory tribal consultation when Indigenous artifacts are known to exist, and encourage developers to avoid sensitive archaeological areas, its ultimate mandate often falls short of outright protection. Despite its reputation for seriously considering tribal concerns, a stance widely praised by both Native and non-Native archaeologists across the nation, the systemic limitations remain profound.

Jackie Ferry, a non-Native archaeologist and the tribal historic preservation officer for the Samish Indian Nation, commends Washington as "very progressive compared to other states in the nation when it comes to archaeological protections and tribal concerns." She notes that DAHP frequently withholds permits until tribal concerns are adequately addressed, a testament to its proactive engagement. This sentiment is echoed by Valerie Grussing, executive director of the National Association of Tribal Historic Preservation Officers, who 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." Even Shellenberger, despite his frustration with the overarching system, acknowledges the dedication of DAHP staff, stating, "They’re amazing staff. They make sure that the permittees are engaging with the tribes."

However, a critical consensus emerges among experts, including Allyson Brooks herself, Washington’s State Historic Preservation Officer (SHPO) and one of the nation’s longest-serving, that a permit fundamentally does not protect artifacts. Instead, it merely dictates the conditions under which these irreplaceable cultural assets can be damaged, removed, or irrevocably destroyed. "The end result is project delivery," Brooks candidly admitted, attributing this reality to the department’s inherent lack of "authority to protect those resources." This systemic flaw means that even with the most dedicated and tribally-minded state officials, the legal framework itself is predisposed to facilitate development rather than preserve heritage.

Across Washington State, the relentless march of industrial expansion, driven by urban growth, infrastructure demands, and the burgeoning renewable energy sector, increasingly encroaches upon Indigenous historical sites. Despite DAHP’s exemplary efforts within its existing legal boundaries, the department’s data paints a stark picture: over the past quarter-century, DAHP has approved an astonishing 99.55% of permit applications, denying only four. This near-universal approval rate, according to tribal historic preservation officers, attorneys, archaeologists, and state officials, is not an oversight but a deliberate outcome of a system designed to circumvent a crucial international human rights principle: free, prior and informed consent (FPIC). As Ferry succinctly puts it, "The law doesn’t really protect. I think especially in Washington state, they do the best with what they’re given… but ultimately it is ‘consider the impacts,’ not ‘protect the archaeology site.’ And that’s at both state and federal levels."

Shellenberger traces the genesis of this problem back to the Antiquities Act of 1906, legislation ostensibly enacted to curb the rampant looting and vandalism of Indigenous village sites. While seemingly benevolent, the Act enshrined the federal government as the ultimate authority over structures and artifacts found on federal lands, often without any requirement to acknowledge or respect tribal sovereignty or inherent interest. This historical context is fraught with the legacy of figures like President Theodore Roosevelt, whose notorious declaration, "the only good Indians are the dead Indians," underscores the prevailing colonial mindset of the era. Shellenberger highlights that this legislation effectively sidelined tribal nations, legitimizing the nascent field of Western archaeology and granting frequently non-Native archaeologists immense power over Indigenous cultural heritage. "That was by design. We were expected to go extinct," he observes, pointing to the systemic erasure embedded within these foundational laws.

Decades later, the National Historic Preservation Act (NHPA) of 1966 sought to establish "a system of procedural protections" for archaeological resources, creating the office of State Historic Preservation Officer (SHPO), a position Brooks now holds, and its tribal counterparts. However, even this landmark legislation has proven insufficient in providing substantial protection for tribal nations. A poignant example unfolded in Wampanoag country in 2009, where tribal nations successfully demonstrated that the entirety of Nantucket Sound was eligible for NHPA protections, yet were powerless to prevent wind developers from receiving federal permits to build colossal turbines in the culturally significant waters. This illustrates a critical flaw: procedural acknowledgment does not equate to substantive protection.

At the state level, DAHP mandates that developers document any archaeological resources, including those of tribal significance, on a project site before construction commences. This information forms the basis for DAHP’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 entirely, regardless of the existential threat it poses to archaeological resources. "Avoidance is not mandatory," Brooks confirmed in an email, adding, "but if you impact an archaeological site you need a mitigation permit."

These mitigation permits are typically informed by land surveys, which are often paid for by the developers themselves and conducted by commercial archaeological consulting companies they hire. This arrangement creates an inherent conflict of interest, leading to documented instances of malfeasance. A 2024 investigation by HCN and ProPublica, for example, revealed that contract archaeologists, commissioned by a developer, omitted over a dozen cultural resources from their survey at a sacred Wenatchi-P’squosa site, where a massive solar field was proposed. Shellenberger attests that such pressure on consultants to undercount archaeological resources has become "rampant and common" in recent decades. The dire consequence is that sites, once disturbed, may reveal a far greater scope of cultural significance, but by then, the opportunity to leave them undisturbed is irrevocably lost.

Even when a land survey submitted with a permit application is deemed insufficient, DAHP’s recourse is limited. The department can only instruct the contract archaeologist to revise the survey until it meets state standards, perhaps requiring more detail or a slight adjustment of project boundaries. "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 clarified, underscoring the legal constraints on her agency.

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, the efficacy of this consultation hinges entirely on the good faith of all parties. Even when tribes vocalize their profound grievances, there is no guarantee that their concerns will translate into meaningful changes or project modifications. If consultation devolves into a mere bureaucratic checkbox exercise, tribal governments are left with few avenues for redress. "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 stated with deep resignation.

Brooks herself acknowledges 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 narrow exception arises if a proposed project is situated on reservation lands, though even this limited sovereign authority is currently under threat, with the federal government actively working to undermine tribal nations’ control over such projects.

Beyond the legal limitations, the sheer volume of development proposals places an immense and unsustainable strain on tribal staff. "The volume is enormous. We get over 300 pieces of consultation a month. We have one or two reviewers," Shellenberger lamented. This overwhelming workload creates severe "capacity-building" hurdles, forcing tribal leaders into an agonizing ethical dilemma: to triage, prioritizing only the most immediately threatened or culturally significant sites, while countless others may be lost without adequate review. This issue is not unique to Washington; research by the Society for American Archaeology highlights 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" globally. The Confederated Tribes and Bands of the Yakama Nation, for instance, have been deluged by a "glut of development proposals" for industrial-scale renewable energy projects, compelling them to divert scarce resources to litigate for wildlife protections where explicit Indigenous human rights protections are conspicuously absent.

Shellenberger argues passionately that Indigenous people should never be forced to choose which irreplaceable 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," he asserted, encapsulating the profound moral and cultural imperative that drives these communities.

Globally, in contrast to the American system, some countries have legally affirmed Indigenous peoples’ right to give or withhold their consent for development impacting their traditional lands and territories, providing more robust tools for cultural resource protection. A notable example is the Pueblo Originario Kichwa de Sarayaku in Ecuador, who successfully defended their lands from encroaching oil companies, partly because their right to consent was upheld in court. 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 affecting 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 free, prior and informed consent (FPIC) into law have consistently faced insurmountable obstacles. In 2011, President Barack Obama notably redefined FPIC merely as "meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders," effectively stripping it of its core meaning of consent. 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, when it came time to sign the legislation, Governor Inslee controversially vetoed the entire section pertaining to tribal consent, an act many Indigenous leaders denounced as a profound "betrayal."

The concept of FPIC frequently generates significant apprehension among political actors and corporate interests, who often mischaracterize the right to consent as an undesirable "veto power" over development projects. Proponents of Indigenous sovereignty vehemently reject this right-wing framing, instead emphasizing that consent is not a veto but a fundamental human right, essential for equitable and sustainable co-governed projects. 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 matters, with administrations, such as the Trump administration, aggressively fast-tracking data center development and resource extraction while frequently failing to meet statutory consultation requirements for decisions impacting Indian Country.

Given these formidable challenges, achieving 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 political realities. "Consent is not happening any time soon, and I’ll tell you why," she declared bluntly, "In the U.S., private property is a religion."

Jon Shellenberger, representing generations of his ancestors and those to come, expresses profound weariness at the relentless 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 asked, his voice laden with the weight of history and the urgency of the present. He underscores that the fight for their cultural heritage is not a choice but an inherent obligation for Indigenous people. "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 serve as a powerful testament to the enduring connection between Indigenous identity, ancestral lands, and the relentless struggle for self-determination in the face of unchecked development.