In the rapidly expanding landscape of southwest Washington, where the metropolitan footprints of Portland and Seattle-Tacoma increasingly converge, a critical battle unfolds over ancestral lands and cultural heritage in Cowlitz County. Here, Jon Shellenberger, an enrolled member of the Yakama, Cowlitz, and Wintu tribes, spearheads efforts to safeguard the ancient village site of his great-great-grandmother from relentless development along the bustling I-5 corridor. As an archaeologist and director of the Cowlitz Indian Tribe’s cultural resources department, Shellenberger asserts that the proposed construction is fundamentally incompatible with the profound historical and spiritual significance of the site, a conflict exacerbated by a state permitting system that, he argues, inherently favors development over preservation. He observes that while developers can readily hire archaeologists to process permits for the removal of artifacts, ostensibly for museum display or return to tribes, such procedures tragically fail to capture "the blood, sweat and tears in the soil," diminishing the tangible connection Indigenous peoples hold to their ancestral lands.

Shellenberger views this permitting apparatus as a deliberate mechanism for "erasing a part of our footprint on the landscape," a systematic effacement of Indigenous presence. Washington’s Department of Archaeology and Historic Preservation (DAHP), the state agency charged with overseeing such matters, possesses the authority to grant permits for developers, private landowners, or other state entities to disturb archaeological resources. These permits are issued under specific conditions set by DAHP, which may include tribal consultation when Indigenous artifacts are known to be present. The department has, in fact, cultivated a reputation for taking tribal concerns seriously, setting a standard often lauded across the nation.

Jackie Ferry, a non-Native archaeologist serving as the Samish Indian Nation’s tribal historic preservation officer, attests to Washington’s progressive stance, noting, "Washington is very progressive compared to other states in the nation when it comes to archaeological protections and tribal concerns." She highlights DAHP’s frequent practice of withholding permits until tribal concerns are adequately addressed, signaling a commitment that many other states have yet to achieve. This reputation for effective engagement is widely recognized, particularly concerning State Historic Preservation Officer (SHPO) Allyson Brooks, who leads DAHP. 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." Indigenous archaeologists and tribal employees frequently echo this sentiment, describing positive working relationships with Brooks and her dedicated team, affirming that they "make sure that the permittees are engaging with the tribes," according to Shellenberger.

However, a fundamental contradiction lies at the heart of this seemingly robust system. Experts, including Brooks herself, concede a critical truth: a permit, by its very nature, does not genuinely protect archaeological artifacts. Instead, it meticulously outlines the precise conditions under which these irreplaceable cultural resources can be damaged, removed, or utterly destroyed. Brooks plainly stated that the "end result is project delivery," underscoring that DAHP, despite its best intentions and dedicated staff, fundamentally lacks the "authority to protect those resources." Brooks, who assumed her role in 1999 and stands among the nation’s longest-serving SHPOs, has witnessed firsthand the relentless encroachment of industry upon tribal cultural resources across the state. Despite Washington’s archaeological department being heralded as one of the nation’s best, it remains largely powerless to definitively safeguard the archaeological heritage of tribal nations.

A comprehensive review of hundreds of permit applications filed with DAHP since 2000, obtained through public records, starkly illustrates this systemic limitation: the department has approved an astonishing 99.55% of applications over the past quarter-century, denying only four. This near-universal approval rate, as tribal historic preservation officers, attorneys, archaeologists, and state officials confirm, is not a flaw but an inherent design feature of a system deliberately structured to bypass a critical and often contentious principle: free, prior, and informed consent (FPIC). Ferry succinctly articulates this paradox, explaining, "The law doesn’t really protect. 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 is paramount: the regulatory framework mandates impact assessment, not absolute preservation.

Jon Shellenberger traces the genesis of this foundational problem 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 ultimate authority over structures and artifacts on federal lands. Crucially, it did so without any mandate to acknowledge or incorporate tribal authority or interest. This historical context is further complicated by the fact that the Act bears the signature of President Theodore Roosevelt, whose notorious quote, "the only good Indians are the dead Indians," encapsulates the prevailing colonial mindset of the era. Shellenberger asserts that tribes have been relentlessly advocating for their voices to be heard regarding the protection of archaeological resources since at least 1906, if not longer. He emphasizes that artifacts like pottery and village sites were then largely viewed as "relics of the past" exclusively for "Western scientific learners." 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 unilateral power over Indigenous cultural heritage. "That was by design," Shellenberger observes. "We were expected to go extinct."

Six decades later, the federal government enacted the National Historic Preservation Act (NHPA) to establish "a system of procedural protections" for archaeological resources. This landmark legislation created the roles of the State Historic Preservation Officer (SHPO), which Allyson Brooks occupies, and Tribal Historic Preservation Officers (THPOs), intended to serve as liaisons with their state counterparts. Yet, the NHPA’s ability to offer substantial protection for tribal nations remains ambiguous. A salient example comes from Wampanoag country in 2009, where tribal nations successfully demonstrated that the entirety of Nantucket Sound was eligible for NHPA protections. Despite this significant legal victory, they were ultimately unable to prevent wind developers from receiving federal permits to construct there, highlighting the procedural, rather than protective, nature of the Act.

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 the department’s recommendations for mitigation measures, which aim to either minimize or compensate for the damage, removal, or destruction of artifacts. However, 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. Brooks clarified in an email that while "avoidance is not mandatory," developers are required to obtain a mitigation permit if they impact an archaeological site. These permits rely heavily on land surveys, which are typically funded by the developer and conducted by commercial archaeological consulting companies hired by the developer. This arrangement introduces a significant potential for conflict of interest. A 2024 investigation by HCN and ProPublica, for instance, revealed a case where contract archaeologists, hired by a developer, omitted over a dozen cultural resources from their survey at a sacred Wenatchi-P’squosa site targeted for a solar field.

Developers, Shellenberger notes, may exert subtle or overt pressure on these consultants to undercount or downplay the archaeological resources present on the land—a practice he describes as having become "rampant and common" in recent decades. Should a contractor undercount these resources, a site might reveal itself to be far more extensive or significant once excavation begins. By then, however, the opportunity to leave it undisturbed is irrevocably lost. If a land survey submitted with a permit application is deemed insufficient, DAHP can compel the contract archaeologist to redo it until it meets state standards, perhaps requiring greater detail or a slight adjustment to project boundaries to avoid a sensitive area. Yet, Brooks underscores DAHP’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 formal consultation process is triggered between the tribal government and the responsible state and federal agencies. However, this consultation relies heavily on the good faith of all parties involved. Even if tribes successfully articulate their grievances and concerns, there is no guarantee that these will be genuinely heeded. If consultation merely serves as a bureaucratic checkbox on the path to permit approval, tribal governments find themselves with little 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 unequivocally reiterates this point: "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 notable exception applies when a proposed project falls directly on reservation lands, though even this limited sovereign authority faces ongoing challenges, with the federal government actively working to undermine tribal nations’ control over such projects.

Beyond the legal limitations, the sheer volume of consultation requests places an immense strain on tribal staff and resources. Shellenberger highlights the overwhelming burden: "The volume is enormous. We get over 300 pieces of consultation a month. We have one or two reviewers." This acute "capacity-building" hurdle forces tribal leaders into an impossible position, compelling them to triage and focus only on the most critical sites, knowing that countless others will inevitably be lost. Research by the Society for American Archaeology corroborates this, indicating 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, for instance, the Confederated Tribes and Bands of the Yakama Nation have been inundated with a glut of development proposals for industrial-scale renewable energy projects. This "green colonialism" forces them to allocate scarce resources to the largest and most culturally threatening projects, sometimes even compelling them to litigate for wildlife protections where explicit Indigenous human rights protections are conspicuously absent. Shellenberger finds it unacceptable that Indigenous people are forced to choose which heritage sites to fight for. "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 affirmed Indigenous peoples’ right to give or withhold their consent to development impacting their lands and territories possess more robust mechanisms for protecting cultural resources. A notable example is the Pueblo Originario Kichwa de Sarayaku in Ecuador, whose Indigenous inhabitants successfully protected their ancestral lands from trespassing oil companies, in part because national courts upheld their inherent right to consent. This standard is enshrined in the United Nations Declaration on the Rights of Indigenous People (UNDRIP), which stipulates that governments should secure Indigenous nations’ free, prior, and informed consent on projects and policies that could impact them, ensuring such consent is obtained free of coercion and well in advance of any potential impacts. However, in the United States, tribal efforts to codify FPIC into law have consistently failed at both the federal level and within Washington state.

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." This interpretation effectively stripped the concept of its core meaning, rendering it a process of discussion rather than a true mechanism for 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, in exchange for their crucial support for the bill. 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 alarms political actors aligned with corporate interests, who often characterize the right to consent as granting "veto power" over development projects. Conservative think tanks, such as the Macdonald-Laurier Institute, supported by networks like the Atlas Network, have even conducted case studies highlighting the "legal and economic disruptions" that could follow the implementation of FPIC in Canada. However, supporters of Indigenous sovereignty vehemently contest this right-wing framing of consent as mere "veto power," instead asserting it as a fundamental human right and a prerequisite for building durable, co-governed projects. With the Trump administration actively fast-tracking data center development and resource extraction while simultaneously failing to meet statutory consultation requirements for decisions affecting Indian Country, the path to securing the right to consent remains an arduous uphill battle for tribal nations. At a tribal renewable energy summit in 2023, hosted by DAHP to foster dialogue between tribal nations, industrial developers, and state government, Allyson Brooks was starkly blunt about 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."

Jon Shellenberger expresses profound weariness with tribes perpetually being forced to compromise. He poses a haunting question: "How long will it take until everything that we know is in a box sitting in a museum collecting dust?" For Indigenous peoples, fighting for their cultural heritage is not merely an option but an existential imperative. Shellenberger’s personal mission is deeply rooted in an intergenerational commitment: "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 encapsulate the enduring struggle for recognition, preservation, and the fundamental right to maintain an unbroken connection to ancestral lands and the stories they hold.