Montana v. Crow Tribe of Indians Page 2

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

Stephen G. Breyer:

Why couldn't... I mean, here why can't the... here's... I take it there's a person who paid some taxes to the State and the Indian tribe says, well, the State doesn't... isn't entitled to that money, and we're more entitled to it than they are, because probably we would have gotten at least some of it, so we would like it in restitution.

Why shouldn't they have it?

The State isn't entitled to it.

Clay Riggs Smith:

Your Honor--

Stephen G. Breyer:

I'll add that my law clerk found a bunch of cases that do seem, in restitution, to give one of the two competing entities in taxes... you pay it to the wrong one, well, the right one has a right in restitution to get it from the wrong one.

Clay Riggs Smith:

--Justice Breyer, the claim that is sought, again, or is alleged, deals with restitution of a specific kind of payment, in this case taxes paid to the respondents by Westmoreland.

It seeks, in essence, a traditional quasicontract remedy, and it has been the petitioners' position throughout that, given the nature of the quite specific remedy sought, that the traditional standards associated with quasicontract govern the respondents' entitlement to those moneys.

Ruth Bader Ginsburg:

Mr. Smith, may I ask you to clarify in response to Justice Breyer's inquiry?

I understood your brief to say it's not a question of one Government receiving the tax versus the other, like one county getting what belonged to another county.

I think your position was that even if there had been no tax by the State of Montana there could not have been a tax by the tribe instead, because it didn't have the requisite Federal permission in the years in question, is that correct?

Clay Riggs Smith:

That's correct, Your Honor and, indeed, the district court so found following the 1994 trial, the second trial in this matter.

Ruth Bader Ginsburg:

So it's not like getting benefits that should have gone to you that went to somebody else, but your position is that it would have been... the tribe could not have gotten the tax.

Clay Riggs Smith:

That's correct, Your Honor.

The vast bulk of the taxes at issue were paid during the period betweenl 1975 and 1982.

Anthony M. Kennedy:

Another way of saying that would be that there was no duty to pay the tribe.

Clay Riggs Smith:

Yes, Your Honor, there was no duty on the part of Westmoreland to pay the tribe.

Anthony M. Kennedy:

In the restitution cases there's usually a duty to pay the person that seeks to recover later on.

Mr. Smith, judging from the number of times you cite it in your brief I gather you rely rather heavily on our decision in United States v. California.

Clay Riggs Smith:

That's correct, Mr. Chief Justice.

William H. Rehnquist:

And how do you fit that into your case?

Clay Riggs Smith:

Your Honor, we believe that California stands for the general proposition that quasicontract relief is available as a matter of Federal common law only with respect to the entity or person who bears the legal incidence of the tax.

Moreover, the facts in California are remarkably similar to the facts here, in the sense that the United States in that case, similar to the tribe in this case, was attempting to enforce in essence an independent obligation that may have existed between the Federal contractor in that case and the United States, just as the tribe in this case is, when you cut through the chaff, is attempting to enforce real or imagined obligations that the... that Westmoreland may have had to the tribe under the terms of the 1976 Tribal Tax Code.

Sandra Day O'Connor:

Well, but the big difference, of course, is that in U.S. v. California the suit was based on money had and received, which this Court said required finding an implied contract, and the tax was found to have violated State law.

State law.

Here, you've got in earlier litigation resolved in Crow II a determination, affirmed by this Court, that the Montana law violated tribal sovereignty and was, indeed, preempted by Federal law.

Now, that is a different cause of action, and maybe will give rise to some right for compensatory damages.

I think U.S. v. California on that basis is distinguishable.

How would you say it is not?

Clay Riggs Smith:

Justice O'Connor--

Sandra Day O'Connor:

You've got a separate cause of action here.