WASHINGTON – When Jody TallBear (Cheyenne/Arapaho, OK & Dakota, Sisseton Wahpeton Oyate) came to the U.S. Department of Energy (DOE) in 2010 her main task was to stand-up a Tribal/Native American focus for the Office of Economic Impact and Diversity, which is charged with ensuring that underserved communities have access to the economic development benefits, existing in the energy sector. Prior to her arrival, the Office had nobody focused on Native American engagement.
A graduate of Augsburg University in Minneapolis and Hamline University Law School in St. Paul, TallBear was also a recipient of an Archibald Bush Foundation Leadership Fellowship. She moved to Washington DC in 2009 where she did stints as a Visiting Fellow at the National Congress of American Indians, the Natural Resources Committee of the U.S. House of Representatives, and the DOE who hired her in 2011.
Within a couple years, TallBear was a recognized national leader in promoting Native American engagement in Science Technology and Engineering (STEM) education—a big job for. A one person. Tribal communities sit on lands rich in coal, uranium, and natural gas that while they contend as mechanisms for economic development in places where the unemployment rates are sometimes over 50%, they’ve also been attributed to environmental and health hazards and violations of sacred sites. Additionally, Native Americans are woefully underrepresented in STEM fields and Indian Country’s lack of STEM expertise directly impacts Indian Country’s ability to develop its energy resources and its broader economies.
TallBear’s ability to navigate the complicated relationships between the US government and its trust responsibility, private industry, and tribal organizations, and other stakeholders put her in a high-profile position and offered her opportunities to display passion and conviction which resulted in establishing her Office and the DOE as champions for the inclusion of tribes in energy policy and Native American people in STEM education nationally.
She was routinely charged with developing Native American policy priorities and stakeholder engagement strategies and recognized in yearly performance reviews at the highest level possible at the Department of Energy. Nominated for a prestigious Secretary’s Honor Award for work relating to her outreach work to tribes, within six years of arriving at the Department of Energy, TallBear had risen to the highest rank of non-executive civil service and was on track to become part of the Senior Executive Service (SES)—in fact, she was slated for training in January of 2016 that would have propelled her to the highest non-political position possible.
But TallBear had a problem. Rather, the Department of Energy had a problem. They’d hired a highly-educated, empowered Native American woman who was not comfortable working in an environment where she felt disrespected and marginalized and her co-workers were permitted to display caricatures of her and her people, all the while telling her that her position that displaying sports mascots that use the image and likeness of American Indians was misplaced and she was wrong for being offended.
She attempted to sensitize DOE employees of the impact displaying the Washington Redskins in a workplace where Native Americans are employed and was frequently requested as a speaker at other Federal agencies where she presented “The Challenges to Achieving Native American Inclusion: Scarcity and False Representation,” which outlined several issues surrounding being indigenous in the United States.
Her presentation also mentioned the use of Native imagery as sports mascots—a phenomena no other ethnicity experiences. Says TallBear, “We’re only two percent of the population and most people don’t know a Native person individually. We’ve been erased from the national conversation. We’re not in popular culture, our history is not taught—and in addition to that, when we are part of mass culture, there are these stereotypical representations of us. That’s why I talked about mascots in my presentation.”
And it was that dogged determination that triggered behavior on the part of her agency and its senior leadership that led her to file an Equal Employment Opportunity complaint in her workplace and later in D.C. District court—and receive a settlement that reminded the Department of Energy that while they may not think that TallBear’s opposition to the Washington Redskins logo and accompanying workplace behaviors are harmful to her physical and emotional health and damaging to her career, her rights to be treated fairly are not to be tangled with.
In October of 2015 TallBear told her supervisor, LaDoris “Dot” Harris, the senior officer of the Department’s Office of Civil Rights, herself an African American, that she was going to include the issue of sports mascots and the name of the Washington, DC football team in her presentation to Federal agencies as part of observances for Native American Heritage Month. Her response was startling. Says TallBear, “She said that me talking about that could get her in trouble with the White House and that it would be like an African American speaking about the Confederate flag. She said it could put her position in jeopardy.”
Calling out racist behavior in the workplace and exposing discrimination, according to the Equal Opportunity Act of 1972 is a legal and protected activity. While officials at the Department of Energy disagreed with TallBear’s claims regarding the displaying of RS logos is, it was Harris’ behaviors that ultimately were deemed retaliatory and resulted in TallBear’s settlement.
Not wanting to buck her supervisor’s authority, she took annual leave so that she would be doing her presentations on her own time. That fueled her supervisor’s efforts to undermine her ability to educate Federal workers about the damaging impact of sports mascots and other disrespectful representations of American Indians.
“It’s so ironic that the head of the diversity office would retaliate against me for protected activity. She sent an email saying she didn’t want me to do the presentation, even on my own time. Then she advised me that she was going to postpone the SES training I’d been scheduled to take in January of 2016.” But it wasn’t as simple as that. Harris began a systematic campaign to isolate and strip TallBear of her senior role in DOE functions as they related to tribal energy issues and ability to move ahead in the Federal government. “She said she had postponed my training, but she really sent internal emails advising senior staff that I was no longer in a senior position and that my SES training was cancelled. I started to get cut out of meetings. I was no longer invited to briefings that I used to facilitate and attend. She took away my entire tribal energy portfolio and told me I was being reassigned to the Office of Civil Rights.” TallBear had been handed a defacto demotion.
While filing an internal EEO complaint for hostile workplace and retaliation, it was her decision to file in District Court that provided a legal settlement that potentially could send a message to other Federal agencies that discrimination and retaliation are inappropriate—and expensive.
TallBear reached out to an attorney who had spoken at the National Museum of the American Indian about mascots who connected her with the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, a non-profit organization of attorneys who provide pro bono legal support in certain discrimination legal actions and work to educate the public and law makers about the impact of discrimination. It has a high success rate.
TallBear’s case was unique. American Indians are critically underrepresented in the Federal workforce and are treated differently. TallBear elaborates, “In the Department of Energy, we’ve always been able to claim that American Indians make up 2% of the workforce. But out of 50 ‘Native Americans,’ perhaps only four were actually members of a tribe, were raised by Natives, or were a member of a Native community.” She explains the hurdles Native Americans must meet to be counted. “The Office of Personnel Management (OPM) gives us the criteria that we ‘must be descended from original peoples of the Americas and be recognized by a Native community.’ If that community recognition, which is tribal enrollment or raised in a tribal community isn’t there, you’re not Native according to OPM. Some of the people who make up that 50 people may have some lineage, but no connection to a Native community. OPM in their wisdom created this distinction, but they don’t force agencies to adhere to it.”
What’s more insidious is that in a workforce that claims to be working toward diversity, it was non-Natives that decided that TallBear’s claims displaying the Redskins logo in a Federal workplace was insulting and demeaning were incorrect. A Trump-appointed judge’s opinion was that negative representations of American Indians as team mascots aren’t discriminatory because they aren’t meant to be so. TallBear continues, “White people would never say ‘My great grandmother had some Black ancestry, so I can speak for the African American community. Nor would Black people claim to speak for the Anglo community because they might have a European ancestor. But everybody feels that they can speak on behalf of Native Americans and their views trump ours.”
What TallBear’s attorney was able to point out successfully was not based on a claim of discrimination or hostile workplace. It was that Harris and other senior officials at the Department of Energy had retaliated against her for suggesting that displaying negative and stereotypical images of American Indians is discriminatory and for filing an EEO complaint. Dennis Corkery, Esq. represented TallBear, “It is rare for a Native American to make use of Title VII’s (legal) protections against race and national origin discrimination. It is also was the first time, or one of the first times, that anyone had made the legal argument about the use of the team’s name having a negative effect on them personally. Even though the hostile work environment claims were dismissed, it still was an important backdrop to the rest of the case…We always knew that our hostile work environment claims were going to be a challenge…but that doesn’t mean that future litigants shouldn’t try to push the law in the right direction.”
TallBear also received support from the Society of American Indian Government Employees. Chair of the Board of Directors, Fredericka Joseph recounts, “SAIGE worked with our National Coalition for Equity in Public Service (NCEPS) Partners on this matter. We wrote and signed a joint letter to both the White House and to OPM. SAIGE strongly disagrees with the logo as it not only stereotypes us, but it is discriminatory. There are no other teams either in the NFL or otherwise where any other group of people are used as mascots. I would like to thank Jody and her willingness to file this complaint. It isn’t easy to take the first step of filing against their agency and their leadership.”
Corkery agrees, “It took a lot of bravery for Ms. TallBear to fight back the way she did. I am forever in awe of her courage.”
For TallBear, victory includes a $200,000 settlement and she will be going to SES training. Because the case was emotionally and physically exhausting, the Department must also restore the sick leave she used during the five years it took to bring closure to her case.
The out-of-court settlement still leaves the question regarding the use of the likeness and image of Natives in the workplace somewhat open. It did prove that Federal employees have the right to speak out against it. But will this change anything? Will Federal workplaces be more friendly to Native American employees in the future? TallBear shares her thoughts, “I hope so. One of the reasons I wanted to do a press release is because I did settle and the legal claims I have against the agency have been extinguished. But I hope that having the spotlight on them and raising this issue will create awareness. She pauses, “A racist slur against Native American people is always justified with ‘We don’t mean it that way.’ But what about how Native people think about it? We are the only people that other’s feelings about what is offensive to us matters more than what we think. I hope this sends a message to other agencies that they’d better take this seriously and they’d better not retaliate.”
(Contact MAXINE Hillary at firstname.lastname@example.org)