98 F.3d 1194
The CROW TRIBE OF INDIANS, Plaintiff-Appellant,andUnited States of America, Plaintiff-Intervenor,v.STATE OF MONTANA, Director, Ken Nordtvedt;  County of BigHorn;  Treasurer, Big Horn County, MarthaFletcher, Defendants-Appellees.The CROW TRIBE OF INDIANS, Plaintiff,andUnited States of America, Plaintiff-Intervenor-Appellant,v.STATE OF MONTANA, Director, Ken Nordtvedt;  County of BigHorn;  Treasurer, Big Horn County, MarthaFletcher, 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.

