The Crow Tribe of Indians, and United States of America, Plaintiff-Intervenor v. State of Montana, Director, Ken Nordtvedt County of Big Horn Treasurer, Big Horn County, Martha Fletcher, the Crow Tribe of Indians, and United States of America, Plaintiff-Intervenor-Appellant v. State of Montana, Director, Ken Nordtvedt County of Big Horn Treasurer, Big Horn County, Martha Fletcher

98 F.3d 1194

The CROW TRIBE OF INDIANS, Plaintiff-Appellant,
and
United States of America, Plaintiff-Intervenor,
v.
STATE OF MONTANA, Director, Ken Nordtvedt; County of Big
Horn; Treasurer, Big Horn County, Martha
Fletcher, Defendants-Appellees.
The CROW TRIBE OF INDIANS, Plaintiff,
and
United States of America, Plaintiff-Intervenor-Appellant,
v.
STATE OF MONTANA, Director, Ken Nordtvedt; County of Big
Horn; Treasurer, Big Horn County, Martha
Fletcher, Defendants-Appellees.

Nos. 95-35093, 95-35096.

United States Court of Appeals,
Ninth Circuit.

Oct. 29, 1996.

Before: BROWNING, WRIGHT, and CANBY, Circuit Judges.

ORDER

1

The motion to recall the mandate is granted.

2

The petition for rehearing received on September 18, 1996, is accepted for filing.

3

The opinion, 92 F.3d 826, is amended by adding to the end of footnote 2:

4

Montana also argues in its petition for rehearing that this case presents a weaker case for quasi-contractual relief than California, where restitution was denied, because the Tribe did not transfer any resources to the State. But California involved an entirely different factual situation: a claim of restitution by the Government where the Government had voluntarily agreed to reimburse a contractor subject to a state tax. The Government, unlike the Tribe, was "in no better position than as a subrogee of its contractor," id. at 752, 113 S.Ct. at 1788, and the Supreme Court held that "the Government cannot use the existence of an obligation to indemnify [a contractor] to create a federal cause of action for money had and received to recover state taxes paid by [the contractor]." Id. at 754, 113 S.Ct. at 1789.