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• 9TH CIRCUIT COURT

THE CROW TRIBE OF INDIANS,Plaintiff-Appellant,andUNITED STATES OF AMERICA,                                                      No. 95-35093Plaintiff-Intervenor,                                                      D.C. No.v.                                                      CV-78-00110-BLGSTATE OF MONTANA, Director, KenNordtvedt; COUNTY OF BIG HORN;TREASURER, BIG HORN COUNTY,MARTHA FLETCHER,Defendants-Appellees.THE CROW TRIBE OF INDIANS,Plaintiff,andUNITED STATES OF AMERICA,                                                      No. 95-35096Plaintiff-Intervenor-Appellant,                                                      D.C. No.v.                                                      CV-78-00110-JDSSTATE OF MONTANA, Director, Ken                                                      ORDERNordtvedt; COUNTY OF BIG HORN;TREASURER, BIG HORN COUNTY,MARTHA FLETCHER,Defendants-Appellees.

The motion to recall the mandate is granted.

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

The opinion is amended by adding to the end of footnote 2:

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 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 1789.