Montana v. Crow Tribe of Indians Page 16

Montana v. Crow Tribe of Indians general information

Media for Montana v. Crow Tribe of Indians

Audio Transcription for Oral Argument - February 24, 1998 in Montana v. Crow Tribe of Indians

David H. Souter:

Are you making this turn basically on procedure, that although there is indication in the record that the tribe in fact would not have received, either by lease negotiation or by taxation, what dollarfordollar Montana took, that somehow Montana nonetheless has got to give it all back because Montana did not go through some procedure of proving that, even though we've got evidence in the record that indicates that?

Is that your position?

Jeffrey A. Lamken:

Yes, Your Honor.

The position is that if it's not grossly disproportional, a little bit of difference between the restitutionary measure and the damages measure does not make a difference.

Antonin Scalia:

Well, it sounds... this--

--You're writing all of this from cases, moreover, in which the restitution is being made to the person from whom the money was taken.

In this case, it would have been the corporation and not the tribe, and I think to simply use the same burden of proof rules in this very different situation is unreasonable.

It is, indeed, reasonable to presume that the whole amount of wrongfully acquired money goes back to the person whom you took it from, and the burden would be on Benvenuto Cellini to show that in fact he gave added value to the lump of gold that he had stolen.

That's very reasonable.

But where you're asking us to give the money to a third party, not to the person from whom it was taken, it seems to me the burden of proof should be on that third party to show that I was injured by this taking from somebody else.

Don't you... doesn't that seem reasonable to you?

Jeffrey A. Lamken:

In the abstract--

Antonin Scalia:

You want us to assume automatically that the tribe was injured 38 million worth.

Jeffrey A. Lamken:

--The cases run exactly that way.

Even where the money is not obtained directly from the plaintiff, it is the defendant's obligation to come forward and show that restitution would be unjust or--

Ruth Bader Ginsburg:

Mr. Lamken, something happened in the district court, and the district court thought, I'm supposed to do something equitable, and that seems to have been forgotten by everybody, that here was a district judge, he said, I'm going to consider the factors on both sides.

And one of the things that he said he thought might be relevant... I hope I remember this correctly... was from day one the tribe could have stopped Montana because the tribe is not blocked by the AntiInjunction Act, so he's kind of mixing all the equities.

So... but he did take into account a lot of the things that we have been talking about.

Where did he go wrong if we don't buy your theory that you start with every penny that Montana got and then, if we don't buy that, what's wrong with what the district judge did?

Jeffrey A. Lamken:

--The first error the district court committed, Your Honor, is the district court failed to consider additional royalties as a possible source of gain to the tribe.

The district court looked simply at the possibility of a tax, and even there the district court had conflicting holdings.

On the one hand it held that the tax had not been approved by the Secretary, so Westmoreland wouldn't have paid it.

On the other hand, it held that the tax had been approved by the Secretary because the ceded strip is part of the reservation and the tax was approved as to the... excuse me, the coal under the ceded strip was part of the reservation and the tax had been approved as to the reservation.

Accordingly, under that holding, if Westmoreland had not paid the money to the State of Montana instead, the tribe would be proceeding against Westmoreland for the money.

Ruth Bader Ginsburg:

But that was much, much later.

In the years that we're talking about, '75 to '82, none of that was settled.

Jeffrey A. Lamken:

The district court's holding came from 1990, that's correct, but the court of appeals had the same holding back in 1982 in Crow I.--

Ruth Bader Ginsburg:

Even '82 was the end of this period.

We're talking about '75 to '82.

Jeffrey A. Lamken:

--That's correct, Your Honor, but I'm not sure why it would make any difference, because the point of the matter is, if the tax was valid the Crow tribe could go after Westmoreland for the tax.