COLUMBUS, Ohio (CN) - Descendants of slaves owned by the so-called Five Civilized Tribes challenged the $3.4 billion class action settlement in Elouise Cobell et al. v. Ken Salazar, in a class action of their own. The Harvest Institute Freedman Federation says the Cobell settlement was racially discriminatory, with the United States paying off descendants of treasonous Indian slave-owners who took the South's side in the Civil War, while stiffing descendants of the Indians' slaves.
The $3.4 billion settlement in Cobell v. Salazar, which will be implemented under Title I of the Claims Resolution Act of 2010, "is racially discriminatory and perpetuates past unlawful racial discrimination," the Freedman Federation says in its own class action.
During the Civil War, the Seminole, Cherokee, Choctaw, Creek and Chickasaw tribes cut ties with the Union and entered into treaties with the Confederacy. In 1866, the tribes had to make new treaties with the United States to regain their land and trust beneficiary status, according to the complaint.
Part of the deal was emancipation of the tribes' slaves, the Freedmen, and though each treaty was different, the slaves of each tribe were to be accepted into the tribe and given various amounts of land in order for the tribes to be given their trust benefits, the class says.
The Choctaw and Chickasaw tribes were reluctant to take the deal; the Choctaw never gave its freedmen the land they were owed and the Chickasaw never adopted them into the tribe, the complaint states.
The Claims Resolution Act will give the descendents of these tribes assets while denying trust benefits to the freed slaves that were "swindled" of their land.
The Cobell case challenged the government's mishandling of Indian trust assets. The "settlement reaffirms the existence of a trust relationship between the United States and Native Americans dating back to 1887," according to the Freedmen's complaint.
But the class adds, "by reason of racism and misfeasance members of the putative plaintiff class were excluded from the receipt of proceeds of these land transactions and therefore did not have individual money accounts established, although under the treaties with the defendants establishment of these accounts for Freedmen was mandatory."
The Harvest Institute has lost before on this issue, in a Federal Court ruling that placed a 6-year statute of limitations on its claims, under the Tucker Act.
But the class claims that that ruling, which was upheld on appeal, is wrong under the repudiation rule, because the government has not repudiated its responsibility to the Indians.
"It is unlawful racial discrimination for the United States to now decide that it will acknowledge and redress its breach of trust responsibility to the Native Americans, but deny it as to the Freedman," the class claims.
The class representatives are the Harvest Institute Freedman Federation and Leatrice Tanner-Brown. It demands an injunction preventing the United States from enacting Title I of the Claims Resolution Act, a declaration that the law is unconstitutional, and equitable relief.
The class is represented by Percy Squire.
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.