In southwest Washington, urban sprawl from Portland and Seattle-Tacoma merges in Cowlitz country. This is where Jon Shellenberger (enrolled Yakama, Cowlitz and Wintu descent) is trying to protect the site of his great-great-grandmother’s village from development off the I-5 corridor. Shellenberger, an archaeologist who directs the Cowlitz Indian Tribe’s cultural resources department, said the development is incompatible with the site. But the state’s permitting system favors development. “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,” he said. “But what that does not capture is the blood, sweat and tears in the soil.”
To Shellenberger, the permitting system is a way of “erasing a part of our footprint on the landscape.” Washington’s Department of Archaeology and Historic Preservation (DAHP) has the authority to permit developers, private landowners or other state agencies to disturb artifacts — under certain conditions, which DAHP sets — or encourage them to avoid archaeological resources during construction. One of DAHP’s conditions might be tribal consultation if the land is known to hold Indigenous artifacts. And DAHP has a reputation for taking tribal concerns seriously.
“Washington is very progressive compared to other states in the nation when it comes to archaeological protections and tribal concerns,” said Jackie Ferry, a non-Native archaeologist who works as the Samish Indian Nation’s tribal historic preservation officer. “They frequently won’t issue the permit until the tribe’s concerns are addressed.”
Its reputation is nationally recognized, particularly for State Historic Preservation Officer (SHPO) Allyson Brooks, who runs the department. “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,” said Valerie Grussing, executive director of the National Association of Tribal Historic Preservation Officers.
Indigenous archaeologists and tribal employees have echoed this, describing positive working relationships with Brooks and her agency. “They’re amazing staff,” said Shellenberger. “They make sure that the permittees are engaging with the tribes.”
But experts, including Brooks, agree: A permit doesn’t actually protect artifacts; instead, it sets out the conditions under which artifacts can be damaged, removed or destroyed. “The end result is project delivery,” Brooks told HCN. Brooks, who joined the department in 1999 and is among the nation’s longest-serving SHPOs, said that’s because the department lacks the “authority to protect those resources.”
Across the state, industry threatens tribal cultural resources as construction proposals increasingly encroach upon Indigenous historical sites. Although Washington’s archaeology department is among the best, even it can’t protect tribal nations’ archaeological heritage. HCN reviewed data from hundreds of permit applications filed with DAHP since 2000, collected through a public records request. They show that the department has approved 99.55% of permit applications in the past 25 years, while it has only denied four. Tribal historic preservation officers, tribal attorneys, archaeologists and state officials told HCN that’s how the system is designed to work — it’s built to avoid a little-known concept called free, prior and informed consent.
“The law doesn’t really protect,” said Ferry. “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.”
“Ultimately it is ‘consider the impacts,’ not ‘protect the archaeology site.’”
SHELLENBERGER TRACES THE PROBLEM back to the Antiquities Act of 1906, which gave the president power to create national monuments. The legislation was created to stop the looting and vandalism of Indigenous village sites. It places the federal government as the authority over structures and artifacts on federal lands — the federal government does not have to acknowledge tribal authority or interest — and bears the signature of President Theodore “the only good Indians are the dead Indians” Roosevelt. “Tribes have been fighting to have their voices heard regarding the protection of archaeological resources since 1906, easy — probably longer,” Shellenberger said.
He added that artifacts like pottery and village sites were seen as “relics of the past and were for Western scientific learners.” This view legitimized the burgeoning field of archaeology, sidelining tribal nations and giving archaeologists — who are frequently non-Native — power over tribal cultural heritage. “That was by design. We were expected to go extinct,” Shellenberger said.
Six decades later, the federal government passed the National Historic Preservation Act to establish “a system of procedural protections” for archaeological resources. But it’s unclear whether the legislation offers any substantial protection for tribal nations. In Wampanoag country in 2009, tribal nations successfully demonstrated that the entirety of Nantucket Sound is eligible for NHPA protections but were still unable to stop wind developers from receiving federal permits to build there. The NHPA also established both the office of state historic preservation officer, which Brooks occupies, and the offices for tribal counterparts to liaise with the SHPO.
At a state level, DAHP requires developers to document any archaeological resources — including tribal ones — on a project site before building. The department uses this information to recommend mitigations that either minimize or compensate for damaging, removing or destroying artifacts.
Neither tribal nations nor DAHP have the legal authority to stop a project through this system, regardless of how big a threat it poses to archaeological resources. “Avoidance is not mandatory,” Brooks told HCN in an email, “but if you impact an archaeological site you need a mitigation permit.”
Those permits recommend ways to mitigate harm based on land surveys that are usually paid for by the developer and carried out by commercial archaeological consulting companies that the developer hires. But a 2024 investigation by HCN and ProPublica found that a team of contract archaeologists, hired by a developer, omitted over a dozen cultural resources from their land survey at a Wenatchi-P’squosa sacred site where the developer wants to build a solar field.
Developers may pressure the consultants to undercount the archaeological resources on the land, something Shellenberger said has become “rampant and common” in recent decades. If a contractor undercounts those resources, Shellenberger noted, the site could reveal itself to be much bigger in scope once digging begins. But by then, it’s too late to leave it undisturbed.
If a land survey submitted with a permit application is insufficient, DAHP sends the contract archaeologist back into the field to redo it until it meets state standards — which might require more detail, for example, or perhaps nudging a project boundary to avoid a sensitive area. “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 said.
When a development is proposed on a known tribal archaeological site, that triggers a consultation process between the tribal government and whatever state and federal agencies are responsible. But consultation relies on the good faith of everyone at the table; even if tribes are able to air their grievances, that doesn’t mean anyone will listen. If consultation is just a box-checking exercise on the way to permits, there’s not much tribal governments can do. “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 said.
“Bottom line is that the tribes have consultation authority but no legal authority to require avoidance or protection of a cultural or sacred resource,” Brooks said. (The only exception is if the proposed project is on reservation lands, though the federal government is currently working to undermine tribal nations’ sovereign authority over such projects.)
Even when consultation is ineffective, the amount of work it requires can put a strain on tribal staff. “The volume is enormous. We get over 300 pieces of consultation a month. We have one or two reviewers.” Shellenberger said. “Capacity-building is a hurdle for us.” Consequently, tribal leaders have to triage, focusing only on the most important sites.
“Bottom line is that the tribes have consultation authority but no legal authority to require avoidance or protection of a cultural or sacred resource.”
In recent years, the Confederated Tribes and Bands of the Yakama Nation have received a glut of development proposals for industrial-scale renewable energy, forcing them to allocate resources to the biggest and most culturally threatening projects and sometimes litigate wildlife protections where Indigenous human rights protections are lacking.
Capacity isn’t just a problem in Washington, either: Research by the Society for American Archaeology shows 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 says Indigenous people shouldn’t be forced to choose which heritage sites they 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 OTHER COUNTRIES that have affirmed Indigenous peoples’ right to give or withhold their consent to development that impacts their lands and territories, there are more tools available for protecting resources. For example, Indigenous people from the Pueblo Originario Kichwa de Sarayaku in Ecuador were able to protect their lands from trespassing oil companies, in part because the courts upheld their right to consent.
That standard is reflected in the United Nations Declaration on the Rights of Indigenous People, which states that governments should secure Indigenous nations’ informed consent on projects and policies that could impact them, free of coercion and well before any impacts might occur. But in the U.S., tribal efforts to codify free, prior and informed consent (FPIC) into law have misfired at both the federal level and in Washington state.
The closest federal law has come to touching the issue was in 2011, when President Barack Obama defined FPIC as “meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders.” In other words, not consent at all.
In 2020, tribal leaders in Washington successfully negotiated for state-level FPIC protections in Gov. Jay Inslee’s Climate Commitment Act, in exchange for supporting the bill. But when it came time to sign it into law, Inslee vetoed the entire section on tribal consent, an act some Indigenous leaders characterized as a betrayal.
FPIC can spook political actors fighting for corporate interests, who sometimes characterize the right to consent as “veto power” over development projects. Some supporters of Indigenous sovereignty contest the right-wing framing of consent as “veto power,” instead of a human right.
“It is difficult to overstate the legal and economic disruptions that may have followed” from implementing FPIC in Canada, said a case study from Atlas Network, which advocates for free-market principles, and Macdonald-Laurier Institute, a conservative think tank.
This year the Trump administration has been fast-tracking data center development and resource extraction while failing to meet statutory consultation requirements on decisions that affect Indian Country. With such powerful forces at work, winning the right to consent is an uphill battle for tribal nations. At a tribal renewable energy summit in 2023, which DAHP hosted to facilitate conversation between tribal nations, industrial developers and state government, Brooks was blunt about the odds: “Consent is not happening any time soon, and I’ll tell you why,” she said. “In the U.S., private property is a religion.”
Shellenberger said he’s tired of tribes being the ones that have to bend. “How long will it take until everything that we know is in a box sitting in a museum collecting dust?” he asked, adding that fighting for their cultural heritage is not optional 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.’”
