Achieving restitution: The potential unjust enrichment claims of indigenous peoples against multinational corporations

New York University Law Review

Volumn 76, Issue 2, 2001, Pages 626-663

  Fagan, David N ^a  

^a NONE

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EID: 23044527669     PISSN: 00287881     EISSN: None     Source Type: Journal    
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References (201)

1. For examples of indigenous experiences similar to those described in the opening paragraph, see infra Part I.B; see also Davi Yanomami, Address Before the United Nations General Assembly (Dec. 1992), in Voice of Indigenous Peoples: Native People Address the United Nations 108, 109-10 (Alexander Ewen ed., 1994) (describing impact of gold miners on Yanomami people in Brazil). See generally Judith Kimerling, Disregarding Environmental Law: Petroleum Development in Protected Natural Areas and Indigenous Homelands in the Ecuadorian Amazon, 14 Hastings Int'l & Comp. L. Rev. 849 (1991)
2. (discussing impact of oil exploration upon indigenous people in Ecuador's Oriente region); Victoria C. Arthaud, Note, Environmental Destruction in the Amazon: Can U.S. Courts Provide a Forum for the Claims of Indigenous Peoples?, 7 Geo. Int'l Envtl. L. Rev. 195 (1994) (same).
3. E.g., Ominayak v. Canada, U.N. GAOR Human Rights Comm., 45th Sess., Supp. No. 40, Annex IX, Communication No. 167/1984, at 27, U.N. Doc. A/45/40 (1990) (finding violations of Canadian tribe's minority rights under Article 27 of International Covenant of Civil and Political Rights); see also Benedict Kingsbury, "Indigenous Peoples" in International Law: A Constructivist Approach to the Asian Controversy, 92 Am. J. Int'l L. 414, 437-39 (1998) (providing overview of international legal claims of indigenous peoples).
4. See infra notes 36-39 and accompanying text. Even if there is a functioning judiciary in the nation in which the indigenous peoples live, it may be susceptible to government influence or otherwise unable to provide redress. See, e.g., Scott Holwick, Note, Transnational Corporate Behavior and Its Disparate and Unjust Effects on the Indigenous Cultures and the Environment of Developing Nations: Jota v. Texaco, a Case Study, 11 Colo. J. Int'l Envtl. L. & Pol'y 183, 203-05 (2000) (noting that, in context of indigenous claims against Texaco, volatility of Ecuador's government could affect ability to seek redress and that Ecuador's courts do not recognize class actions and may be ill-equipped to handle large-scale environmental cases).
5. A "multinational corporation" (MNC) has been defined as "a company with operations in two or more countries, generally allowing it to transfer funds and products according to price and demand conditions, subject to risks such as changes in exchange rates or political instability." Black's Law Dictionary 343 (7th ed. 1999). For purposes of this Note, the critical characteristic of a "multinational corporation" is that its operations transcend national borders, having a base in one country that controls at least part of the activities in the other countries.
6. See Thomas Donaldson, The Ethics of International Business 30 (1989) (noting that MNCs characteristically entail multiple operations, with one controlling others). Therefore, the term "multinational corporation," as used in this Note, is essentially synonymous with "transnational corporation." Cf. Code of Conduct on Transnational Corporations, U.N. ESCOR, Organizational Sess. for 1988, Provisional Agenda Item 2, at 4, U.N. Doc. E/1988/39/Add.1 (1988) (defining transnational corporation as enterprise "comprising entities in two or more countries . . . which operate under a system of decision-making . . . in which the entities are so linked . . . that one or more of them may be able to exercise a significant influence over the activities of others").
7. E.g., Jota v. Texaco, Inc., 157 F.3d 153 (2d Cir. 1998) (reversing dismissal on procedural grounds of two class actions seeking money damages for tort claims and equitable relief for contamination of indigenous territory in Ecuador); Nat'l Coalition Gov't v. Unocal, Inc., 176 F.R.D. 329 (C.D. Cal. 1997) (alleging defendant's complicity in perpetrating torture, forced labor, and slavery against indigenous population in Burma); Beanal v. Freeport-McMoRan, Inc., 969 F. Supp. 362 (E.D. La. 1997) (alleging defendant's complicity in perpetrating genocide, environmental harms, and violent acts against Indonesian indigenous group), aff'd, 197 F.3d 161 (5th Cir. 1999); Doe v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997) (holding that Burmese indigenous plaintiffs had stated actionable claims against defendant for extraterritorial conduct of its foreign partner in violation of international law); Sequihua v. Texaco, Inc., 847 F. Supp. 61 (S.D. Tex. 1994) (alleging contamination of air, ground, and water of indigenous territory in Ecuador); Alomang v. Freeport-McMoRan, Inc., 718 So. 2d 971 (La. Ct. App. 1998) (reversing state court decision to dismiss class action for alleged international human rights violations and environmental damages in Indonesia).
8. Texaco has invoked successfully forum non conveniens and concerns over international comity to defend two cases brought against it by Ecuadorian plaintiffs. Aguinda v. Texaco, Inc., No. 93 Civ. 7527 (JSR), 2000 U.S. Dist. LEXIS 745, at *4-*10 (S.D.N.Y. Jan. 31, 2000) (evincing view that independent weighing of international comity and forum non conveniens factors, per appellate court's instructions, pointed to dismissal, but withholding final judgment pending additional submissions on impartiality of foreign courts); Sequihua, 847 F. Supp. at 63 (dismissing case on grounds of international comity and forum non conveniens). Meanwhile, state and federal courts dismissed parallel actions alleging that Freeport-McMoRan, Inc. committed human rights violations, environmental torts, and cultural genocide against the Amungme people of Indonesia. Beanal v. Freeport-McMoRan, Inc., 197 F.3d 161, 169 (5th Cir. 1999) (affirming district court dismissal on grounds that plaintiffs had failed to prove defendant's actions amounted to environmental torts or abuses under international law); Stewart Yerton, High Court Rejects Freeport Case, Times-Picayune (New Orleans, La.), Mar. 25, 2000, at C2 (reporting state court dismissal of Amungme suit against Freeport), Lexis, News Library, Notpic file. Finally, in Doe, Burmese indigenous farmers achieved initial success when the district court found that jurisdiction could be asserted over Unocal for its partners' actions in violation of international law. 963 F. Supp. at 891-92; see also Nat'l Coalition Gov't, 176 F.R.D. at 344-45 (achieving essentially same result as in Doe in companion class action brought by Burmese refugees, Burmese trade union, and opposition in exile). Ultimately, however, Unocal received summary judgment on the grounds that its mere knowledge of the human rights abuses, such as slavery, was not sufficient to establish liability under international law. Doe v. Unocal Corp., 110 F. Supp. 2d 1294, 1310 (C.D. Cal 2000).
9. See, e.g., Sequihua, 847 F. Supp. at 63 (dismissing case on basis of international comity and forum non conveniens).
10. Beanal provides an example. In that case, although the trial court dismissed the environmental claims, it allowed the plaintiff to amend the complaint to show actual, rather than cultural, genocide and to satisfy the state action requirement for the other torts. 969 F. Supp. at 383-84. Two subsequent amended complaints failed as well, with the court dismissing the final amended complaint because it failed to detail the personal injury suffered by the plaintiff. Beanal v. Freeport-McMoRan, Inc., No. CIV.A. 96-1474, 1998 WL 92246, at *1 (E.D. La. Mar. 3, 1998). There was only one plaintiff in the case because the counsel previously had missed the deadline for filing a class action. Further, the Supreme Court refused to hear the case after the plaintiff missed the deadline for filing an appeal. See Yerton, supra note 6, at C2.
11. Indeed, at least one commentator has found reason for optimism in these cases. See Saman Zia-Zarifi, Suing Multinational Corporations in the U.S. for Violating International Law, 4 UCLA J. Int'l L. & Foreign Aff. 81, 114 (1999) (noting that initial success of case against Unocal and favorable statements of judge in case against Freeport are positive signs for using Alien Tort Claims Act, 28 U.S.C. § 1350 (1994), in cases against MNCs).
12. Commentators have pointed out that a notion of unjust enrichment often underlies claims in other areas of the law, such as tort. See, e.g., Andrew Kull, Rationalizing Restitution, 83 Cal. L. Rev. 1191, 1216 (1995) (noting that concept of unjust enrichment can resemble contract and tort liabilities);
13. see also Jack Beatson, The Use and Abuse of Unjust Enrichment: Essays on the Law of Restitution 209 (1991) ("[T]here may be a conceptual overlap where in order to establish one claim it is necessary to prove the existence of the other claim.").
14. See generally Douglas Laycock, The Scope and Significance of Restitution, 67 Tex. L. Rev. 1277 (1989) (discussing all uses of restitution, including tort and contract claims and actions for replevin or ejectment).
15. Beatson, supra note 10, at 3 (noting that restitution has been used to give "new solutions to old problems . . . [and] to fill gaps left in other categories"); see also Restatement (Second) of Restitution § 1 cmt. c (Tentative Draft No. 1, 1983) [hereinafter 1983 Tentative Draft] (noting that situations to which restitution may be applicable "cannot be enumerated exhaustively"); Albert A. Ehrenzweig, Restitution in the Conflict of Laws: Law and Reason Versus the Restatement Second, 36 N.Y.U. L. Rev. 1298, 1300 (1961) (asserting that unjust enrichment "is nothing but the rationale of disparate and isolated legal phenomena which . . . serve to correct overgeneralized rigid rules from every corner of the law").
16. See Metro. Life Ins. Co. v. Solomon, 996 F. Supp. 1473, 1475-77 (M.D. Fla. 1998) (providing overview of application of unjust enrichment in mistaken payment and granting plaintiff summary judgment for restitution of mistaken payment); see also Beatson, supra note 10, at 85 (discussing role of unjust enrichment when there is windfall benefit); 1 George E. Palmer, The Law of Restitution § 1.2, at 7 (1978) (discussing development of quasi-contract as basis for recovery). A similar application of unjust enrichment is found in its use as a remedy for trademark infringement. See, e.g., Bishop v. Equinox Int'l Corp., 154 F.3d 1220, 1222-23 (10th Cir. 1998) (discussing prevention of unjust enrichment as potential justification for awarding profits to plaintiff who has not proved damages in trademark case).
17. E.g., Bodner v. Banque Paribas, 114 F. Supp. 2d 117 (E.D.N.Y. 2000); Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424 (D.N.J. 1999); Burger-Fischer v. Degussa AG, 65 F. Supp. 2d 248 (D.N.J. 1999). A court has yet to rule on the substantive merits of the unjust enrichment claims in the Holocaust context. In Iwanowa and Burger-Fischer, the plaintiffs' cases were dismissed on justiciability and procedural grounds. Iwanowa, 67 F. Supp. 2d at 472-75 (holding that unjust enrichment claims were time barred); Burger-Fischer, 65 F. Supp. 2d at 283-85 (finding that case presented political question and dismissing claims on justiciability grounds). In Bodner, however, the court held that the plaintiffs had standing to bring claims against the defendant banks for the assets deposited in those banks by plaintiffs or their family members. 114 F. Supp. 2d at 126. In addition, the court rejected the defendants' various procedural and doctrinal arguments to dismiss and held the plaintiffs' claims merited an equitable tolling. Id. at 126-36. In doing so, the Bodner court at least left open the possibility that a substantive claim of unjust enrichment could succeed. The Holocaust cases are relevant not only because they illustrate a potentially novel use of unjust enrichment, but also because the dynamics of the cases parallel indigenous claims. As in the Holocaust litigation, indigenous plaintiffs would be bringing a claim of unjust enrichment against a corporate defendant who received an enrichment largely, though perhaps not entirely, through the actions of governmental parties. See infra notes 83-86 and accompanying text (discussing satisfaction of enrichment element when benefit flows from third party, such as local authorities).
18. HPI Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc., 545 N.E.2d 672, 679 (Ill. 1989) (stating that unjust enrichment applies when "defendant's retention of the benefit violates the fundamental principles of justice, equity, and good conscience"); infra note 165 and accompanying text.
19. See Mark P. Gergen, The Jury's Role in Deciding Normative Issues in the American Common Law, 68 Fordham L. Rev. 407, 468 (1999) (noting that state of unjust enrichment is "murky because the content and structure of the law of restitution are unsettled"); Kull, supra note 10, at 1191-96 (introducing discussion of restitution by describing uncertainty surrounding it and noting that American lawyers, judges, and law professors really do not understand restitution).
20. See Gergen, supra note 15, at 471-72 & 471 n.305 (reciting cases in which U.S. courts have found novel applications for law of unjust enrichment).
21. An indigenous plaintiff almost certainly would not have any legal title to the land, at least not title that would be enforceable against an MNC in a foreign court. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 436-38 (1964) (holding that act-of-state doctrine precludes U.S. courts from judging validity of foreign expropriation); Doe v. Unocal Corp., 963 F. Supp. 880, 898 (C.D. Cal. 1997) (following rule that act-of-state doctrine "bars plaintiffs' claims insofar as they are based on expropriation of property"). Additionally, an indigenous plaintiff would not have any contractual claim against an MNC and, as the cases brought thus far illustrate, would have difficulty asserting any tort claim unless an MNC or one of its partners committed an act approaching a gross atrocity. See supra notes 5-6.
22. This is not to say that unjust enrichment is necessarily the only ground for recovery. Other claims, including those brought thus far, may be possible and even efficacious. See Zia-Zarifi, supra note 9, at 143 (concluding that Alien Tort Claims Act may provide "unique, powerful tool for placing MNCs directly under international law"); see also Adelman v. Christy, 90 F. Supp. 2d 1034, 1045 (D. Ariz. 2000) (noting that plaintiff can plead unjust enrichment claim as alternative theory of recovery to breach of contract claim). This Note is not intended as a comparison of the merits or obstacles of competing claims. Rather, it simply seeks to explore the workings of one potential theory of recovery: unjust enrichment.
23. The ruling military junta of Burma officially changed the name of the country to Myanmar upon taking power in 1988. Doe v. Unocal Corp., 110 F. Supp. 2d 1294, 1296 (C.D. Cal. 2000); for additional background, see EarthRights Int'l & Southeast Asian Info. Network, Total Denial: A Report on the Yadana Pipeline Project in Burma (1996) [hereinafter Total Denial], http://www.ibiblio.org/freeburma/docs/totaldenial/td.html. This Note, however, will continue to refer to the nation as Burma, as others have done elsewhere. See, e.g., Doe, 110 F. Supp. 2d at 1296 n.1 (noting that U.S. government continues to refer to country as Burma).
24. See Maria Stavropoulou, Indigenous Peoples Displaced from Their Environment: Is There Adequate Protection?, 5 Colo. J. Int'l Envtl. L. & Pol'y 105, 105-06 (1994) (discussing difficulties in achieving universally accepted definition of indigenous peoples). Compare José R. Martínez Cobo, Study of the Problem of Discrimination Against Indigenous Populations ¶ 379, U.K. Doc. E/CN.4/Sub.2/1986/7/Add.4, U.K. Sales No. E.86.XIV.3 (1987) (emphasizing that indigenous peoples consist of groups that have "a historical continuity with pre-invasion and pre-colonial societies that developed on their territories"), with Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention No. 169), June 27, 1989, art. 1, 28 I.L.M. 1382, 1384-85 (eschewing strict historical continuity requirement in definition of indigenous peoples and adding category of "tribal peoples"), and World Bank Group, The World Bank Operational Manual, Operational Directive 4.20, ∥ 3, (1991) (defining indigenous peoples more broadly to include "groups with a social and cultural identity distinct from the dominant society that makes them vulnerable to being disadvantaged in the development process"), http:// wbln0018.worldbank.org/institutional/manuals/opmanual.nsf. Not only has the process of achieving a single definition been difficult and, thus far, unsuccessful, but the definitions that have been reached also are controversial. The United Nations definition, for example, which never has been adopted officially and simply derives from a 1986 report by Special Rapporteur José Martínez Cobo, has met with criticism for its "potentially limited" approach of requiring historical continuity for a group to be recognized as indigenous. See Kingsbury, supra note 2, at 420 (comparing U.N., International Labour Organisation (ILO), and World Bank definitions of indigenous peoples). In addition, indigenous groups have voiced displeasure with ILO Convention No. 169 for its lack of focus on indigenous rights, including its failure to refer to a right of self-determination Id. at 439 (citing
25. Howard Berman, Indigenous Peoples and the Right to Self-Determination, 87 Am. Soc'y Int'l L. 190, 193-94 (1993)). In fact, even the notion of "indigenous peoples" can be contentious, as evidenced by the resistance of certain Asian nations to the applicability of the concept within their borders. See id. at 433-36 (discussing objections of India, China, and other Asian states to application of "indigenous peoples" concept within their borders). Similarly, many African governments view any definition of "indigenous peoples" with skepticism due to their "reluctance . . . to recognize specific tribal groups as 'indigenous,' or to accord them special protection." Discrimination Against Indigenous Peoples: Transnational Investments and Operations on the Lands of Indigenous Peoples, U.N. ESCOR, Comm'n on Human Rights, Provisional Agenda Item 15, ∥ 8, U.N. Doc. E/ CN.4/Sub.2/1994/40 (1994) [hereinafter 1994 Transnational Investments Report].
26. Terje Brantenberg & Henry Minde, Introduction: The Indigenous Perspective, in Becoming Visible: Indigenous Politics and Self-Government 3, 4 (Terje Brantenberg et al. eds., 1995).
27. See Indep. Comm'n on Int'l Humanitarian Issues, Indigenous Peoples: A Global Quest for Justice 31 (1987) [hereinafter ICIHI Report] (discussing lack of uniformity among indigenous peoples).
28. See S. James Anaya, Indigenous Peoples in International Law 85-86 (1996) (discussing general characteristics that define indigenous peoples); Brantenberg & Minde, supra note 21, at 5 (identifying characteristics of peoples who claim indigenousness).
29. Discrimination Against Indigenous Peoples: Study on the Protection of the Cultural and Intellectual Property of Indigenous Peoples, U.N. ESCOR, Comm'n on Human Rights, 45th Sess., Provisional Agenda Item 14, 1 18, U.N. Doc. E/CN.4/Sub.2/1993/28 (1993) [hereinafter Cultural and Intellectual Property Study].
30. Siegfried Wiessner, Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis, 12 Harv. Hum. Rts. J. 57, 58-59 (1999). In addition to the brute force that orchestrated the conquest of indigenous peoples, colonial domination attempted to secure its roots in international law. See Anaya, supra note 23, at 9-26 (tracing developments of international law in response to European conquests and rule over indigenous peoples). While the specific legal and moral justifications for dominion over native populations changed over time, they consistently reflected a view of indigenous peoples as inherently inferior to the governing majority. See id. at 10-12, 22 (noting that early European jurisprudence appealed to divine law or "right reason" to justify European rule, while later international law determined indigenous peoples were simply "incapable of enjoying sovereign status or rights in international law").
31. Robin Wright, World's Indigenous Peoples Are the Poorest, Study Says, Sacramento Bee, June 13, 1993, at A21 (restating results from 1993 ILO report);
32. see also Review of Developments Pertaining to the Promotion and Protection of Human Rights and Fundamental Freedoms of Indigenous People, U.N. ESCOR, Comm'n on Human Rights, 15th Sess., Provisional Agenda Item 5(c), ¶¶ 1-6, U.N. Doc. E/CN.4/Sub.2/AC.4/1997/4 (1997) (discussing different effects of development and modernization on health of indigenous peoples).
33. Cultural and Intellectual Property Study, supra note 24, ¶ 19 (describing process of colonialism repeating itself as non-European states expand activities into previously isolated areas); see also ICIHI Report, supra note 22, at 43-67 (examining forms of exploitation of indigenous land); Kingsbury, supra note 2, at 453-54 (discussing shared history of disruption, dislocation, or exploitation as one of four prerequisites for group to be "indigenous people").
34. The reference to indigenous or ancestral land in the United Nations and World Bank definitions of indigenous peoples provides an evidentiary starting point for the centrality of land among the characteristics identifying indigenous groups. See Kingsbury, supra note 2, at 419-20 & 420 n.20 (reviewing competing definitions of indigenous people); cf. Holwick, supra note 3, at 183 (noting that members of U'wa tribe of Colombia consider it "their collective duty to care for the Earth").
35. See Discrimination Against Indigenous Peoples: Transnational Investments and Operations on the Lands of Indigenous Peoples, U.N. ESCOR, Comm'n on Human Rights, 43rd Sess., Provisional Agenda Item 15, ¶ 22, U.N. Doc. E/CN.4/Sub.2/1991/49 (1991) [hereinafter 1991 Transnational Investments Report] (discussing effect of environmental destruction on indigenous peoples' economic organization).
36. See id. ¶¶ 22-25.
37. See Cultural and Intellectual Property Study, supra note 24, ¶¶ 33-57 (reviewing indigenous peoples' rights with respect to lands holding religious significance).
38. See id. ¶¶ 36-43.
39. See 1991 Transnational Investments Report, supra note 29, ¶ 20 (stating that "subsistence activities, social structure and culture [of indigenous peoples] are largely dependent on [their land]"); Martin A. Geer, Foreigners in Their Own Land: Cultural Land and Transnational Corporations - Emergent International Rights and Wrongs, 38 Va. J. Int'l L. 331, 349-50 (1998) (discussing significance of indigenous land to indigenous cultures); Kingsbury, supra note 2, at 421 (identifying importance of land and effects of modernization as unifying issues for indigenous peoples).
40. Cultural and Intellectual Property Study, supra note 24, ¶ 21.
41. See id. ¶¶ 22-26 (suggesting that attacks on land of indigenous peoples undermine integrity of their heritage, which encompasses all that is part of their distinct identity).
42. Cf. Ndiva Kofele-Kale, International Law of Responsibility for Economic Crimes: Holding Heads of State and Other High Ranking Officials Individually Liable for Acts of Fraudulent Enrichment 1-4 (1995) (discussing propensity for heads of state to exploit resources for personal gain).
43. See Kingsbury, supra note 2, at 428 (pointing out that colonial legacy includes underrepresentation of minority groups, including indigenous peoples, in elite state and private institutions, and formation of coalitions of minority groups to counteract their inferior position). But see Anaya, supra note 23, at 86 (noting that more governments have become amenable to using term "self-determination" in addressing indigenous peoples' concerns). There is evidence that the political status of some indigenous peoples may be improving. See, e.g., Stephen Buckley, Upheaval in Ecuador Shows Clout of Indians: Protests Ended in President's Ouster, Wash. Post, Jan. 27, 2000, at A21 (reviewing role of Ecuador's indigenous peoples in ouster of Ecuadorian President Mahuad);
44. Anthony Faiola, Peruvian Candidate Reflects New Indian Pride: U.S.-Educated Toledo Stresses Native Background, Wash. Post, Mar. 31, 2000, at A1 (reporting on emergence of indigenous candidate as primary challenger to Peruvian President Fujimori in election).
45. 1994 Transnational Investments Report, supra note 20, ¶¶ 6, 58 (discussing failure of governments in Africa and Asia to respect indigenous land rights and quoting Indonesian government as describing indigenous peoples as "backward, alien and isolated" with "impoverished culture").
46. The example of Brazil shows that the existence of laws protecting indigenous populations does not necessarily equate with actual protection of these people. The Brazilian Constitution guarantees the protection of Indian rights to land, including the exclusive use of the natural resources in their territory. Constituição Federal [C.F.] art. 231 (Braz.), reprinted in 1 Constitutions of the Countries of the World: Brazil 133 (Gisbert H. Flanz ed., Keith S. Rosenn trans., 1998). This constitutional provision reflects a federal policy formulated in the 1980s intended to stem the destruction of indigenous land and peoples. See Wiessner, supra note 25, at 77 (reviewing status of indigenous population in Brazil). Yet, the 1990s witnessed the continued invasion and destruction - with government knowledge, if not complicity - of Yanomami land in Amazonia. See id. at 77-79 (discussing exploitation of Yanomami territory and Brazilian government's reluctance to assert strong federal policy on indigenous land rights); see also Karen E. Bravo, Balancing Indigenous Rights to Land and the Demands of Economic Development: Lessons from the United States and Australia, 30 Colum. J.L. & Soc. Probs. 529, 564-67 (pointing out failure of national government of Brazil to protect indigenous land). Massacres, rampant disease, and even suicide among the Yanomami accompanied the incursion onto their territory.
47. Ann Gibbons, Yanomami People Threatened, 252 Science 1616 (1991) (reporting danger of Yanomami people becoming extinct due to diseases associated with invasion); Wiessner, supra note 25, at 77 (discussing effect of invasion on Yanomami people). Moreover, it is feared that the response of the Brazilian government - an additional decree providing for the demarcation of indigenous land - only will exacerbate the vulnerability of indigenous lands. See id. at 78-79.
48. Cf. Kingsbury, supra note 2, at 447 (identifying common ground for indigenous groups on certain issues, such as emergent legal regimes related to international trade and intellectual property). The infringement of intellectual property rights is a grave concern to indigenous peoples. See generally Discrimination Against Indigenous Peoples: Intellectual Property of Indigenous Peoples: Concise Report of the Secretary General, U.N. ESCOR, Comm'n on Human Rights, 44th Sess., Provisional Agenda Item 15, U.N. Doc. E/ CN.4/Sub.2/1992/30 (1992) (discussing protection of intellectual property of indigenous people). For example, indigenous peoples in Papua New Guinea accused genetic researchers of stealing their genes and patenting them.
49. Gary Taubes, Scientists Attacked for "Patenting" Pacific Tribe, 270 Science 1112 (1995). Much of the concern in this area centers around the Human Genome Diversity Project (HGDP), which proposes to collect and analyze the genes from diverse population groups.
50. Patricia Kahn, Genetic Diversity Project Tries Again, 266 Science 720, 720-22 (1994). A thorough discussion, however, of the vast intellectual property concerns of indigenous peoples - and, specifically, their concerns over the HGDP - is beyond the scope of this Note. For now, it is sufficient to recognize that the doctrine of unjust enrichment possibly would cover indigenous losses of intellectual property. See 2 Palmer, supra note 12, § 10.11, at 463 (discussing unjust enrichment claim for voluntary submission of ideas).
51. See Ariadne K. Sacharoff, Note, Multinationals in Host Countries: Can They Be Held Liable Under the Alien Tort Claims Act for Human Rights Violations?, 23 Brook. J. Int'l L. 927, 931-32 (1998) (detailing incentives for multinational corporations to invest in developing countries); see also Geer, supra note 33, at 336-37 (identifying transnational corporations as primary international actors in devastation of indigenous land in Amazonia region);
52. Brad J. Kieserman, Comment, Profits and Principles: Promoting Multinational Corporate Responsibility by Amending the Alien Tort Claims Act, 48 Cath. U. L. Rev. 881, 882-83 (1999) (discussing unregulated nature of MNC activity in developing host countries).
53. See 1994 Transnational Investments Report, supra note 20, ¶ 19 (arguing that privatization and intense development requirements will increase role of transnational corporations in indigenous areas).
54. See, e.g., Sacharoff, supra note 41, at 958-64 (discussing activities of Shell Oil in Nigeria).
55. See 1994 Transnational Investments Report, supra note 20, ¶ 12 (describing vicious cycle of exploitation and violence derived from relationship between transnational corporation and government).
56. See Geer, supra note 33, at 352 (giving examples of Latin American countries where transnational corporations have helped loot resources at expense of indigenous peoples (citing Study of the Problem of Discrimination Against Indigenous Populations, U.N. ESCOR, Comm'n on Human Rights, 36th Sess., Provisional Agenda Item 11, at 141, U.N. Doc. E/CN.4/Sub.2/1983/21/Add.4 (1983))). But cf. ICIHI Report, supra note 22, at 93-101 (detailing positive role government can play in development and protection of indigenous land).
57. Freeport and Unocal are not the only cases available to illustrate the experience of MNCs in indigenous settings. For example, lawsuits have been brought by indigenous plaintiffs against Texaco for its actions in Amazonia. See supra note 5. The experience of Texaco, however, is sufficiently similar to Freeport that it would be redundant to refer to both cases throughout this Note. For background on the effect of Texaco's investment in Ecuador on that nation's indigenous population and the ensuing claims brought against Texaco, see generally Arthaud, supra note 1. Additionally, it should be noted that the issue of MNC actions in indigenous settings is not unique to U.S. MNCs, and cases brought by indigenous plaintiffs against MNCs have not been limited to U.S. courts. See, e.g., Dagi v. Broken Hill Proprietary Co., No. BC9502519, 1995 VIC LEXIS 1182 (Vict. Nov. 10, 1995) (suit against Australian mining company for damage caused to indigenous groups and local rivers in Papua New Guinea). For background on the effects of the Ok Tedi mine on the people and rivers of Papua New Guinea, see generally Heather G. White, Including Local Communities in the Negotiation of Mining Agreements: The Ok Tedi Example, 8 Transnat'l Law. 303 (1995).
58. 1994 Transnational Investments Report, supra note 20, Annex ¶ 59.
59. The government of Indonesia has worked with Freeport to protect its interest in the mine and has profited from taxes, dividends, and purchases surrounding the project. See Kourtney Twenhafel, Comment, Freeport McMoran's Midas Touch: Testing the Application of the National Environmental Policy Act to Federal Agency Action Governing Multinational Corporations, 4 Tul. J. Int'l & Comp. L. 303, 324 (1996) (describing importance of Freeport's mining operations to government of Indonesia).
60. Twenhafel, supra note 47, at 323. In fact, as of the mid-1990s, the Grasberg mine reportedly had the largest gold reserves and one of the five largest copper reserves in the world. 1994 Transnational Investments Report, supra note 20, Annex ¶ 60.
61. 1994 Transnational Investments Report, supra note 20, Annex ¶ 60 (noting effect of Freeport's mining operations in Indonesia on its economic performance in late 1980s and early 1990s). The mines continue to produce results for Freeport: It reported "sales of 256.2 million pounds of copper and 330,500 ounces of gold during the second quarter of 2000." News Release, Freeport-McMoRan Copper & Gold Inc., Freeport-McMoRan Copper & Gold Inc. Reports Second-Quarter and Six-Months 2000 Results (July 18, 2000), http://www.fcx.com/news/2q00Results.PDF.
62. See Twenhafel, supra note 47, at 324 (describing importance of Freeport's mining operations to its financial health).
63. The military rulers since have changed the government's name to the benign, benevolent-sounding "State Peace and Development Council." See Doe v. Unocal Corp., 110 F. Supp. 2d 1294, 1296 n.1 (C.D. Cal. 2000).
64. Id. at 1298. In addition to Unocal, the other companies in the consortium are the French company Total, the state-owned Myanma Oil and Gas Enterprise (MOGE), and the Petroleum Authority of Thailand Exploration and Production (PTTEP). Id. at 1297. Unocal owns a 28.26% interest in the venture. Id. at 1299; Unocal Corp., Yadana Report March 1997 (1997), [hereinafter Yadana Report] (on file with the New York University Law Review). The consortium began commercial production from the Yadana gas field in early 2000. Unocal Corp., Progress & Prosperity Along the Pipeline Route: The Yadana Natural Gas Development Project - April 2000, at Project Overview [hereinafter Progress & Prosperity], http://www.unocal.com/myanmar/00report/index.htm.
65. Robert J. Peterson, Comment, Political Realism and the Judicial Imposition of International Secondary Sanctions: Possibilities from John Doe v. Unocal and the Alien Tort Claims Act, 5 U. Chi. L. Sch. Roundtable 277, 280 (1998) (providing overview of Unocal investment in Burma).
66. Doe, 110 F. Supp. 2d at 1297-98, 1301 (describing different responsibilities of parties to Yadana project and noting Unocal official's assertion that military had been hired to provide security).
67. Peterson, supra note 53, at 280.
68. David I. Becker, Note, A Call for the Codification of the Unocal Doctrine, 32 Cornell Int'l L.J. 183, 186 n.14 (1998).
69. For an enumeration of the warnings and reports Unocal received concerning abuses in the region, see Doe, 110 F. Supp. 2d at 1298-1301.
70. Progress & Prosperity, supra note 52, at Project Overview; Yadana Report, supra note 52.
71. Unocal has stated that MOGE, which has a fifteen percent share of the pipeline, will receive a revenue stream of approximately $150 million annually. Yadana Report, supra note 52. Given that Unocal has a twenty-eight percent interest in the project, it would seem that Unocal's estimated annual revenue stream will be around $280 million. See Morton Winston, John Doe vs. Unocal: The Boardroom/Courtroom Battles for Ethical Turf, Whole Earth, Summer 1999, at 17, 17 (reporting that Yadana pipeline is estimated to generate "as much as $200 million a year in revenue once completed"). According to Unocal, the field will support thirty years of production. Progress & Prosperity, supra note 52, at Project Overview.
72. Yadana Report, supra note 52.
73. In fact, Unocal considers its future success dependent upon its ventures in Asia, including Burma. See Dev George, Unocal or Unoburm, Offshore, July 1997, at 8, 8 (detailing Unocal's dedication to its ventures in Asia and its establishment of twin headquarters in Malaysia as step to securing its roots in Asia).
74. See Human Rights and the Environment - US Mining Corporation Sued in Federal Court by Indonesian Tribal Leader, 1996 Colo. J. Int'l Envtl. L. & Pol'y 89, 94 [hereinafter US Mining Corporation] (noting allegations that Freeport's close relationship with Indonesian government permits mining on expropriated land)
75. 1994 Transnational Investments Report, supra note 20, Annex ¶¶ 65-66. The resettlement has occurred, in part, through a plan implemented by Freeport and the Indonesian government without consultation with the indigenous leaders. Id. Annex ¶ 65. Those indigenous people who have not been resettled through the joint Freeport-Indonesian efforts face pressure to do so from the influx of laborers who work the mines. Id. Annex ¶ 69.
76. Twenhafel, supra note 47, at 325.
77. Id.
78. Id.
79. See US Mining Corporation, supra note 62, at 94.
80. Doe v. Unocal Corp., 963 F. Supp. 880, 883 (C.D. Cal. 1997); see also Doe v. Unocal Corp., 110 F. Supp. 2d 1294, 1296-1302 (C.D. Cal. 2000) (describing various human rights abuses allegedly committed by SLORC); Total Denial, supra note 19, at 32-45 (detailing forced labor and relocation resulting from Yadana project).
81. Doe, 963 F. Supp. at 883; see also Total Denial, supra note 19, at 21-26 (detailing human rights abuses resulting from pipeline project).
82. See 1994 Transnational Investments Report, supra note 20, ¶ 10 (noting that governments in Burma and Indonesia have claimed ownership over natural resources situated on indigenous land and have disposed of these resources without consultation).
83. See, e.g., Tooltrend, Inc. v. CMT Utensili, SRL, 198 F.3d 802, 805 (11th Cir. 1999) (citing Florida test for unjust enrichment); Mass Transit Admin. v. Granite Constr. Co., 471 A.2d 1121, 1125 (Md. Ct. Spec. App. 1984) (giving test for Maryland); see also Andrew Burrows, The Law of Restitution 7 (1993) (identifying three questions that illustrate elements of unjust enrichment);
84. Kit Barker, Unjust Enrichment: Containing the Beast, 15 Oxford J. Legal Stud. 457, 458-59 (1995) (same). It should be noted that, depending on the jurisdiction, the test for unjust enrichment may have variations upon these elements or additional requirements. For example, to assert an unjust enrichment claim under Louisiana law, a benefit must accrue to the defendant at the plaintiffs expense without justification and there must be an absence of remedy for the plaintiff at law. McPhearson v. Shell Oil Co., 584 So. 2d 373, 376 (La. Ct. App. 1991). The purpose of this Note is to provide an analysis of the general mechanics of an unjust enrichment claim as it may apply in the indigenous context. Therefore, the Note will focus on the core elements of enrichment, expense, and unjustness rather than the specific requirements of jurisdictions in which a claim may be brought.
85. See Burrows, supra note 71, at 7 (identifying issue of possible defenses as fourth question for unjust enrichment claim); Barker, supra note 71, at 459 (same). For a discussion of potential defenses, see infra Part II.D.
86. This Note recognizes that the choice of which law will apply to an indigenous unjust enrichment claim is a significant - and potentially dispositive - issue. The outcome of a choice of law analysis, however, is highly variable and depends upon the rules of the forum, the alternative applicable substantive laws, and, to a greater or lesser degree, the predilection of the court. As a result, the most that this Note can state about a choice of law analysis in a hypothetical indigenous claim of unjust enrichment is that it may not matter (e.g., because the applicable laws are essentially the same, or U.S. law will apply), may matter a great deal (e.g., if the analysis dictates that foreign law will govern and that law precludes a claim), or may matter only slightly (e.g., the foreign law may be different and may govern, but its application will produce only a slightly different outcome). Despite such uncertainties, it is possible to offer a summary regarding the bounds of a choice of law analysis in an unjust enrichment claim. Generally, the choice of law issue in this context will be one of first impression. Cf. 2 Dicey and Morris on the Conflict of Laws 1486 (Lawrence Collins et al. eds., 13th ed. 2000) (stating that, until recently, English courts rarely have addressed question of choice of law in unjust enrichment cases). The Restatement (Second) of Conflict of Laws advises that restitutionary claims should be determined by the law of the state that has the most significant relationship to the facts that give rise to the claim and the parties involved. Restatement (Second) of Conflict of Laws § 221(1) (1971). In the indigenous context, certain considerations, such as the relevant policies and interests of the foreign state and the central location of the relationship between the parties, may point to the application of the law of the state that received the MNC investment. See id. §§ 6(2)(c), 221(2). Other considerations may point to the application of the forum law, including the needs of the international system of law, the relevant policies of the forum, and the basic policies underlying a claim of unjust enrichment. See id. § 6(2)(a)-(b), (e); see also Robert A. Leflar et al., American Conflicts Law § 156, at 443 (4th ed. 1986) (suggesting five choice-of-law considerations for restitution problems, including forum's interests and which is "the better rule of law"). The result is that most jurisdictions in the United States apply an interest analysis that gives the court the freedom to apply whichever law it wants. See Joseph W. Dellapenna, Suing Foreign Governments and Their Corporations § 7.5, at 229-30 (1988) (noting that interest analysis is predominant in United States and asserting that its complexity "makes it an ideal escape device - a court can justify using any law it wants"). But see Larry Kramer, Rethinking Choice of Law, 90 Colum. L. Rev. 277, 319-38 (1990) (arguing against interest analysis and proposing canons of construction to drive analysis of conflict-of-law problems). A good example of the unpredictability of the choice-of-law issue in an unjust enrichment setting occurred in Phoenix Can. Oil Co. v. Texaco, Inc., 560 F. Supp. 1372 (D. Del. 1983). In that case, the court determined that Ecuadorian law should govern the plaintiffs' claim. Id. at 1382-83. Finding no unjust enrichment claim in Ecuador's civil code, the court nevertheless permitted the claim to proceed, reasoning that general principles underlying civil codes may be sufficient grounds for a claim and that the Ecuadorian code implicitly contained principles against unjust enrichment in its recognition of quasi-contract theories. Id. at 1383-84. Later, the court encountered a provision in Ecuadorian law analogous to an unjust enrichment claim and applied the principles of that provision rather than the general principles against unjust enrichment. See Phoenix Can. Oil Co. v. Texaco, Inc., 658 F. Supp. 1061, 1063, 1078 (D. Del. 1987) (noting that Ecuadorian court would permit unjust enrichment claim as action "de in rem verso"). Of course, Phoenix Canada does not mean that the choice-of-law analysis always will be so favorable to an unjust enrichment plaintiff. As mentioned above, depending on the case, the application of foreign law could preclude an unjust enrichment claim. In the absence of an actual case on point, this Note analyzes the unjust enrichment claim on the basis of its potential applicability in the indigenous cases.
87. See Nicholas J. McBride & Paul McGrath, The Nature of Restitution, 15 Oxford J. Legal Stud. 33, 47 (1995) (describing debate over what constitutes enrichment as "fruitless" because of lack of particular reference point setting out standards for determining accuracy of views defining enrichment).
88. Lord Goff of Chieveley & Gareth Jones, The Law of Restitution 16 (3d ed. 1986) ("Most benefits are positive in the sense that they are an accretion to the defendant's wealth."); 1 Palmer, supra note 12, § 1.8, at 44-45 (arguing that one of most significant meanings of benefit arises when there is addition to defendant's wealth).
89. See, e.g., Provident Life & Accident Ins. Co. v. Waller, 906 F.2d 985, 993 (4th Cir. 1990) (noting that defendant's double recovery in insurance case constituted "archetypal unjust enrichment scenario"); see also Peter Birks, An Introduction to the Law of Restitution 131 (1985) (noting that enrichment is easy issue when it simply involves change of position relating to money); Burrows, supra note 71, at 7 (suggesting that establishment of benefit is "straightforward" when property is at issue).
90. See Birks, supra note 76, at 13 (noting difficulty of determining what may count as wealth).
91. See Beatson, supra note 10, at 29-31 (providing overview of possible ways to measure wealth and therefore enrichment).
92. 1994 Transnational Investments Report, supra note 20, Annex ¶ 60.
93. See Beatson, supra note 10, at 44 (arguing for exchange value as appropriate test for enrichment); cf. United States v. Applied Pharmacy Consultants, Inc., 182 F.3d 603, 608 (8th Cir. 1999) (citing Jackson v. Jones, 22 Ark. 158 (1860), for example of case holding that when party transfers goods, such as bushels of corn, that have exchange value, recipient is enriched by fair market value of those goods).
94. To the extent that Freeport saved an expense in its acquisition of the right to mine the indigenous territory, the saved expense is considered a negative benefit and also may satisfy the enrichment element of an unjust enrichment claim. See Restatement of Restitution § 1 cmt. b (1937) (stating that benefit can be saving of expense); Goff & Jones, supra note 75, at 16 (noting that in exceptional cases benefit may be negative). For instance, suppose an MNC such as Freeport does not pay to use indigenous land, but rather acquires a nontransferable "right" to use the land through a deal with the government whereby the MNC's only obligation is to provide a kickback to government officials. The expense that Freeport saves in not having to provide compensation for use of the land may be considered a benefit.
95. See supra note 59 and accompanying text (discussing likely revenue stream of pipeline).
96. See 1 Palmer, supra note 12, § 1.7, at 40 (noting that restitution cases often arise when "the defendant knowingly and often wrongfully takes a benefit directly from the plaintiff").
97. See 1 id. § 1.7, at 41 (discussing two categories of indirect benefits, including when "the defendant has received from a third person a benefit to which the plaintiff has a better right"); see also Commerce P'ship v. Equity Contracting Co., 695 So. 2d 383, 386 (Fla. Dist. Ct. App. 1997) ("Because the basis for recovery does not turn on the finding of an enforceable agreement, there may be recovery under a contract implied in law even where the parties had no dealings at all with each other."); 1983 Tentative Draft, supra note 11, § 4 cmt. a (noting that restitution may result when "wrong was committed against the claimant by the third party and restitution is claimed from the recipient of a benefit resulting from the wrong").
98. E.g., Wilson v. Todd, 26 N.E.2d 1003 (Ind. 1940). A similar result occurs in the following scenario: D gives $2000 to A in exchange for the use of a particular piece of property, which A took from its rightful owner, P. D then makes $5000 using the piece of property. D clearly has benefited from using the property and, assuming for now the satisfaction of the expense and unjustness elements, will owe P $5000. Cf. Creach v. Ralph Nichols Co., 267 S.W.2d 132 (Tenn. Ct. App. 1953) (holding that plaintiff in quasi-contract action could recover resale value of stolen car that had been bought by defendant and resold for profit). For an explanation of why the plaintiff would be entitled to the full $5000, see infra Part III.B.
99. See infra notes 139-41 and accompanying text (discussing role of defendant's knowledge in vitiating bona fide purchaser for value defense).
100. See Steamfitters Local Union No. 420 Welfare Fund v. Philip Morris, Inc., 171 F.3d 912, 937 (3d Cir. 1999) (noting that unjust enrichment claim in tort context cannot proceed where plaintiffs' harm is too remote from defendant's conduct); 1 Palmer, supra note 12, § 2.10, at 134 (indicating that "[i]t is necessary to establish a connection between the interest of the plaintiff which was infringed and the benefit to the defendant"); see also Beatson, supra note 10, at 242-43 (arguing that in restitutionary claims based on wrongful acquisition of benefit, plaintiff must show enrichment is attributable to plaintiff's interest); Goff & Jones, supra note 75, at 23 ("A plaintiff must normally show that it was he or someone whom he authorised who conferred the benefit on the defendant.").
101. See, e.g., Beatson, supra note 10, at 25 (providing overview of Birks's focus on two different forms of enrichment in showing expense to plaintiff).
102. See id. at 208 ("In some cases . . . there will be an exact correlation between the defendant's gain and the plaintiffs loss."); Goff & Jones, supra note 75, at 25 ("In many cases what the plaintiff has lost will be what the defendant has gained.").
103. See, e.g., Beck v. N. Natural Gas Co., 170 F.3d 1018 (10th Cir. 1999) (affirming jury award for unjust enrichment resulting from deprivation of plaintiff landowners' rights when defendant's storage of natural gas leaked under plaintiffs' property); see also Birks, supra note 76, at 23, 132-33 (discussing concept of expense as equivalent to subtraction from plaintiff); Burrows, supra note 71, at 16, 19-20 (same).
104. See HPI Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc., 545 N.E.2d 672, 679 (Ill. 1989) (noting three general situations in which plaintiff can recover benefit that was transferred to defendant by third party); Lamkin v. Hill, 419 A.2d 1077, 1080 (N.H. 1980) (noting that restitution is awarded not only when defendant is wrongdoer, but also when it would be unjust for defendant to retain honestly obtained benefits); see also Gergen, supra note 15, at 469 ("Restitution can also operate as a basis for obligation in circumstances when the obligor did nothing that could be considered wrongful.").
105. See Goff & Jones, supra note 75, at 25.
106. Id.
107. See supra note 17.
108. See Goff & Jones, supra note 75, at 25 ("[T]here is no necessary equation between what the plaintiff has lost and what the defendant has gained at his expense.").
109. See Burrows, supra note 71, at 16-20 (noting "widespread acceptance" of unjust enrichment by wrongdoing). Although commentators usually focus on the defendant's conduct, it is not necessary that the defendant have committed the wrongdoing to satisfy the element of expense. See McBride & McGrath, supra note 74, at 45 (noting that recourse may be had even when expense to plaintiff does not flow from defendant's wrongdoing); infra notes 113-16 and accompanying text (same); see also Goff & Jones, supra note 75, at 23 ("[A] benefit may be deemed to have been conferred at the plaintiff's expense even though a third party conferred it on the defendant."). For a detailed discussion of unjust enrichment resulting from defendant's wrongdoing, see generally Birks, supra note 76, at 313-57.
110. See Birks, supra note 76, at 313 (describing notion of wrongs as "breaches of duty rather than blameworthy conduct"); 1 Palmer, supra note 12, § 2.10, at 133 ("[T]here need [not] be any loss to the plaintiff except in the sense that a legally protected interest has been invaded.").
111. See Birks, supra note 76, at 313 (noting that wrongdoing includes "not only all torts but also breaches of equitable and statutory duties and breaches of contract"). For example, the exercise of duress may be evidence of an expense to the plaintiff. See Goff & Jones, supra note 75, at 203-04 (discussing claims arising from compulsion of plaintiff's action).
112. Mass Transit Admin. v. Granite Constr. Co., 471 A.2d 1121, 1125 (Md. Ct. Spec. App. 1984) (noting that unjust enrichment may apply "'even though the plaintiff may have suffered no demonstrable losses'" (quoting Dan B. Dobbs, Handbook on the Law of Remedies: Damages, Equity, Restitution § 4.1, at 224 (1973))); 1983 Tentative Draft, supra note 11, § 1 cmt. g (stating that unjust enrichment does not require claimant to "demonstrate both a loss and an offense"); see also infra notes 178-81 (discussing remedial possibilities under unjust enrichment when damages are not easily quantifiable).
113. 1 Palmer, supra note 12, § 2.10, at 133-34; see also Raven Red Ash Coal Co. v. Ball, 39 S.E.2d 231, 237 (Va. 1946) (granting recovery for additional use of easement even though use caused plaintiff no tangible loss because "justice plainly requires the law to imply a promise to pay a fair value of the benefits received"). Similarly, an embezzler may replenish the amount of embezzled funds, but he or she still will have to answer the original victim's unjust enrichment claim for any profits derived from the funds, because the act of embezzlement violated the victim's rights. 1983 Tentative Draft, supra note 11, § 1 cmt. g.
114. See supra note 63 and accompanying text (describing pressures on indigenous groups to resettle).
115. HPI Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc., 545 N.E.2d 672, 679 (Ill. 1989); Paffhausen v. Balano, 1998 ME 47, ¶ 6, 708 A.2d 269, 271 (noting that unjust enrichment applies when "on the grounds of fairness and justice, the law compels performance of a legal and moral duty to pay").
116. 1 Michael Eisenstein, Palmer's Law of Restitution § 1.7, at 26 (Cumulative Supp. No. 2, 1996) ("There must be some operative act, intent, or situation to make enrichment unjust."); see also HPI Health Care, 545 N.E.2d at 679 (noting that to succeed on unjust enrichment claim, plaintiff had to show that defendant's conduct was wrongful or that its claim to benefit was superior to that of defendant). The circumstances or reasons that give rise to a finding of injustice do not always have to be delineated precisely. For example, in Anderson v. DeLisle, 352 N.W.2d 794 (Minn. Ct. App. 1984), the plaintiff contracted to buy real estate from the defendants and made substantial improvement upon the property. Id. at 795. The plaintiff ultimately defaulted on the contract, but the appellate court allowed recovery for the improvements. In support of its ruling, the court noted that the defendants contracted for improvements and purposefully were silent while the plaintiff made the improvements because they knew there was little chance of the plaintiff fulfilling the contract, thereby allowing them to keep their property with the improvements. Id. at 796.
117. See, e.g., Hershey Foods Corp. v. Ralph Chapek, Inc., 828 F.2d 989, 999 (3d Cir. 1987) (stating that to prove unjust enrichment, plaintiff "must show that the party against whom recovery is sought either wrongfully secured or passively received a benefit that would be unconscionable for the party to retain without compensating the provider"); see also Burrows, supra note 71, at 21-23 (introducing unjust enrichment by subtraction as method for looking at factors of unjustness).
118. The cases on unjust enrichment consider the presence of the following factors as proof of what is legally unjust: "mistake, ignorance, duress, exploitation, legal compulsion, necessity, failure of consideration, illegality, incapacity, ultra vires demands by public authorities, and the retention of the plaintiff's property without his consent." Burrows, supra note 71, at 21.
119. On this point, Professor Palmer provided the example of Shockley v. Wickliffe, 148 S.E. 476 (S.C. 1929). 1 Palmer, supra note 12, § 1.7, at 41-42. In that case, the plaintiff paid a debt, but he was unable to find proof of the payment. He therefore paid the debt a second time, and the court denied recovery because the payment was voluntary. Shockley, 148 S.E. at 477.
120. See supra notes 36-40, 43-45 and accompanying text.
121. See Burrows, supra note 71, at 23 (noting that on "a general level" wrong to plaintiff is unjust but will not always warrant restitution).
122. Cf. Barker, supra note 71, at 470 (noting that wrongful gains "can include . . . gains [that] have not been attained via the breach of any primary legal duty").
123. Restatement (Second) of Restitution § 45(2) (Tentative Draft No. 2, 1984) [hereinafter 1984 Tentative Draft].
124. See 1983 Tentative Draft, supra note 11, § 1 cmt. b (giving circumstance where gain acquired through abuse of position is disgorged as example of deterrent function of restitution); cf. G.H.L. Fridman & James G. McLeod, Restitution 231-43 (1982) (discussing role of equitable analogues of compulsion, such as undue influence and unconscionability, in Canadian law of restitution).
125. See generally Burrows, supra note 71, at 189-204 (analyzing unjust enrichment for exploitation).
126. See 1984 Tentative Draft, supra note 110, § 1 cmt. i ("In many cases of unjust enrichment the person who owes restitution to the claimant will have acquired a benefit either directly from the claimant or through an intermediary who wrongfully inflicted a loss on him."); 1 Palmer, supra note 12, § 2.20, at 221 ("One who is the innocent recipient of a benefit that came from the plaintiff by virtue of the wrongful act of a third person is obliged to make restitution . . . .").
127. See supra notes 11-12 and accompanying text; see also 1 Palmer, supra note 12, § 1.7, at 44 ("The idea of unjust enrichment permeates almost the whole of restitution and occasionally is called upon to explain the relief given when anything more precise defies formulation."). Doe v. Unocal Corp., 110 F. Supp. 2d 1294 (C.D. Cal. 2000), serves as a case on point. In that case, the trial judge granted summary judgment on plaintiffs' claims under the Alien Tort Claims Act for Unocal because, though it knew about the misconduct of its government partners, it was not an active participant in the actions committed against the indigenous plaintiffs. Id. at 1310.
128. 1 Palmer, supra note 12, § 1.7, at 44.
129. Cf. Birks, supra note 76, at 326-27 (examining deliberate exploitation as basis for liability to make restitution).
130. See Burrows, supra note 71, at 27-28 (noting that certain defenses to unjust enrichment claims go primarily to enrichment while others go to alleged injustice).
131. See generally id. at 421-40 (discussing change of position and estoppel defenses to unjust enrichment claims).
132. The lucrative nature of the projects that attract MNC attention in the indigenous context and the size and stature of such MNCs make a change of position defense implausible. It is highly unlikely that a company such as Freeport would be able to argue successfully that the profits from its exploitation of indigenous land and resources had vanished and it found itself in such financial straits that any enforcement of a claim against it would be inequitable. Similarly, it would be specious for an MNC to argue that an indigenous group promised the exploitation of its land to the MNC for the MNC's own gain. As noted previously, indigenous groups often are not consulted prior to the deprivation of their land, and if they agree to give up any territory to their detriment, it is usually because they are under duress and have no choice. See supra notes 36-40, 43-45 and accompanying text. Other traditional arguments put forth by defendants include limitation, incapacity, and illegality. Burrows, supra note 71, at 27, 439-72. The latter two defenses apply in straightforward contract cases that do not capture the MNC-indigenous relationship. The first defense, limitation, may have some relevance to the indigenous cases, but only when the indigenous plaintiffs bring an unjust enrichment claim after the expiration of the statute of limitations and the court does not permit an equitable tolling.
133. In addition to substantive defenses, an MNC almost certainly would respond to any claim by an indigenous person with a number of prudential and procedural defenses that, if successful, would act to bar the court's jurisdiction. See supra note 6. For instance, Texaco successfully invoked forum non conveniens and the doctrine of international comity in Sequihua v. Texaco, Inc., 847 F. Supp. 61 (S.D. Tex. 1994). Likewise, insofar as the conduct at issue involves official acts of a foreign state, the act-of-state and political question doctrines could be relevant in the indigenous setting. In Doe v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997), the district court rejected Unocal's argument that the act-of-state doctrine precluded jurisdiction, id. at 892-95, but did note that the doctrine operated as an absolute bar to any of the plaintiffs' claims based on the expropriation of property, id. at 898. Additionally, if the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602-1611 (1994), precludes jurisdiction over the government partner of an MNC, the MNC likely will argue, as Unocal did, that the case must be dismissed because the government partner is an indispensable party. Id. at 889. While these prudential concerns bear on indigenous cases in general and should be considered with proper weight, the fact that they do not relate specifically to unjust enrichment claims precludes a more detailed discussion in this Note. Nevertheless, it should be acknowledged that thorough analyses of these defenses have been conducted elsewhere. See, e.g., Jack L. Goldsmith, The New Formalism in United States Foreign Relations Law, 70 U. Colo. L. Rev. 1395 (1999) (analyzing resurgent formalistic application of political question doctrine, act-of-state doctrine, and dormant foreign affairs preemption);
134. Armin Rosencranz & Richard Campbell, Foreign Environmental and Human Rights Suits Against U.S. Corporations in U.S. Courts, 18 Stan. Envtl. L.J. 145, 179-205 (1999) (discussing applicability of forum non conveniens, international comity, act-of-state doctrine, and FSIA in suits against U.S. corporations); Zia-Zarifi, supra note 9, at 120-43 (examining procedural and prudential limitations of applying Alien Tort Claims Act against MNCs for conduct overseas).
135. 1 Palmer, supra note 12, § 1.7, at 41 ("Issues of considerable difficulty . . . arise . . . [when] the problem is whether retention of a recognizable enrichment is unjust."); Kull, supra note 10, at 1226 ("The central problem of the law of restitution is to identify those instances of enrichment that the law regards as unjust . . . .").
136. The ensuing arguments are not exhaustive, but, in the absence of a real case with concrete facts, they constitute the most likely defenses to arise in the MNC-indigenous context.
137. Freeport's presence in Indonesia contributed to tax and export revenues and furthered technological and infrastructure development. 1994 Transnational Investments Report, supra note 20, Annex ¶ 69. For its part, Unocal asserts that its presence brings jobs, training, and benefits to the local economy. Doe v. Unocal Corp., 110 F. Supp. 2d 1294, 1301 (C.D. Cal. 2000) (citing Unocal briefing document on investment in Burma); see also Progress & Prosperity, supra note 52, at Project Overview (claiming that socio-economic program affiliated with Yadana project "has brought real and immediate benefits to the 43,000 villagers living in a remote and impoverished region").
138. HPI Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc., 545 N.E.2d 672, 679 (Ill. 1989).
139. See supra notes 11-14 and accompanying text.
140. 1994 Transnational Investments Report, supra note 20, Annex ¶¶ 64-65. Even a report from the United Nations concedes that "[t]hese recent efforts . . . may offset some of the negative effects the mining operations have had on the Amungme people and their land." Id. Annex ¶ 64.
141. Progress & Prosperity, supra note 52, at Lasting Improvements.
142. Yadana Report, supra note 52.
143. Admittedly, it is debatable whether any remedy short of full restoration of the land would be adequate. Nevertheless, unjust enrichment would provide grounds for recovery that, though perhaps not completely satisfactory, will offer the closest approximation to restitution and improve the indigenous plaintiffs' position. See infra note 178 and accompanying text (noting ability of plaintiffs to recover profits of defendant under unjust enrichment claim).
144. See supra note 63 (discussing forced resettlement of indigenous population in Indonesia).
145. See Sacharoff, supra note 41, at 927-28 (summarizing MNCs' response to criticism of investment in countries such as Burma, Indonesia, China, and Nigeria).
146. See id. at 928 (noting that Unocal, among others, argues that its corporate duty is to maintain presence in Burma in order to promote long-term prospects of Burmese people); see also Progress & Prosperity, supra note 52, at Long-Term Benefits (arguing that MNCs "can contribute significantly to improvements in the quality of life and economic prosperity in developing countries").
147. This is not to say that deterrence is the principle goal of unjust enrichment. While it does play a role in unjust enrichment doctrine, see infra notes 168-69 and accompanying text, the primary focus of unjust enrichment is restoring equity between the parties, regardless of the effect on future behavior. See infra note 157 and accompanying text.
148. S. James Anaya, Indigenous Peoples and International Law Issues, 92 Am. Soc'y Int'l L. Proc. 96, 98-99 (1998) (discussing why efforts of indigenous peoples have been noteworthy).
149. Id. at 96-97 (discussing results of indigenous peoples' efforts to gain attention of international organizations). To this end, the United Nations has proposed a declaration that includes recognition of the right of indigenous peoples to self-government. Report of the Working Group on Indigenous Populations on Its Eleventh Session, U.N. ESCOR, Comm'n on Human Rights, 45th Sess., Annex 1, Agenda Item 14, art. 3, at 52, U.N. Doc. E/CN.4/Sub.2/1993/29 (1993). For more details on the function of the working group, see Anaya, supra note 23, at 152-54; see also Erica-Irene Daes, The United Nations and Indigenous Peoples from 1969 to 1994, in Becoming Visible, supra note 21, at 51, 52-54. The Inter-American Commission on Human Rights has proposed a similar declaration. Proposed American Declaration on the Rights of Indigenous Peoples, Inter-Am. C.H.R., art. 15, OEA/Ser/L/V/II.95, doc. 6 (1997), http://www.summit-americas.org/Indigenous/Indigenous-Declaration-end.htm. In addition, the Rio Declaration of the 1992 Earth Summit recognized environmental security as a vital right of indigenous peoples. U.N. Conference on Env't & Dev., Rio Declaration on Environment and Development princ. 22, U.N. Doc. A/Conf.151/5/Rev.1 (1992), reprinted in 31 I.L.M. 874, 880 (1992). For a thorough review of the inroads that indigenous peoples have made as a subject of concern to the international community, see generally Russel Lawrence Barsh, Indigenous Peoples in the 1990s: From Object to Subject of International Law?, 7 Harv. Hum. Rts. J. 33, 34 & n.5 (1994).
150. See Burrows, supra note 71, at 27, 472-75 (identifying bona fide purchaser for value as common defense to unjust enrichment claim).
151. See 1 Palmer, supra note 12, § 2.20, at 221 (noting that defendant may have to make restitution "unless he gave value for the benefit").
152. Cf. Birks, supra note 76, at 447 ("[T]he nature and purpose of the defence of bona fide purchase for value without notice is to allow the recipient who comes within the terms of the defence to take his enrichment free of all adverse claims.").
153. See 1984 Tentative Draft, supra note 110, § 45 illus. 10 (providing example of defendant's liability for restitution when defendant purchases product that defendant knows is stolen and then resells for profit); Birks, supra note 76, at 439 (noting that bona fide purchaser for value defense may defeat restitutionary claim if defendant is "without notice of the facts entitling the plaintiff to his claim").
154. See Burrows, supra note 71, at 472-73 (identifying sanctity of contracts as principal root for bona fide purchaser for value defense).
155. Cf. 1 Palmer, supra note 12, § 5.1, at 571 (analyzing defendant's choice to accept and retain benefit as reason for restitution in contractual default setting).
156. See 1983 Tentative Draft, supra note 11, § 1 cmt. i ("[T]here is an independent principle that the receipt of gain is not unjust enrichment to the extent that the recipient generated it by his own rightful contribution of effort, capital, or skill."); 1 Palmer, supra note 12, § 2.12, at 161 ("One of the recurring problems in the law of restitution is to determine whether, or the extent to which, the defendant's gain is the product not solely of the plaintiff's interest but also of contributions made by the defendant.").
157. See Laycock, supra note 10, at 1287-88 (discussing instances where gains to defendant exceed loss to plaintiff).
158. See 1 Palmer, supra note 12, § 2.20, at 224-25 (noting that courts have refused to deprive innocent party of profits made through subsequent use of property received).
159. See 1984 Tentative Draft, supra note 110, § 45 cmt. c (noting that converter owes full restitution "if when making the improvement he was aware that he had acquired the property wrongfully").
160. See Barker, supra note 71, at 459 (suggesting that concerns over use of unjust enrichment reflect "questions about the appropriate limits of the concept of an 'enrichment'").
161. Doe v. Unocal Corp., 110 F. Supp. 2d 1294, 1298 (C.D. Cal. 2000) (noting that Unocal incorporated Unocal Myanmar Offshore Company to hold its interest in Yadana project); 1994 Transnational Investments Report, supra note 20, Annex ¶ 59 (noting that majority-owned subsidiary carries out Freeport's operations in Indonesia).
162. Texaco, for one, sought to deny liability for harms to the Ecuadorian indigenous population on the grounds that its subsidiaries made all relevant decisions. See Eyal Press, Texaco on Trial, Nation, May 31, 1999, at 11. For a discussion of the use of tracing as a technique to obtain a remedy to an unjust enrichment claim, see Burrows, supra note 71, at 57-76.
163. See supra notes 68-70 and accompanying text.
164. See Birks, supra note 76, at 114-16 (noting that when defendant chooses to accept benefit rather than reject it, defendant loses ability subjectively to devalue benefit at issue). The element of enrichment also is satisfied when the benefit is of the kind that can be turned into money and does in fact turn into money. Id. at 121-24.
165. 1994 Transnational Investments Report, supra note 20, Annex ¶¶ 59-60 (detailing history of Freeport's operations in Indonesia and pointing out that Freeport signed new contract in 1991).
166. Of course, evidence such as Freeport's multiple agreements with Indonesia may not be necessary to counter an MNC claim that it has not received remuneration from its subsidiary. As has been noted, the right to mine the land is itself an enrichment. See supra notes 79-80 and accompanying text.
167. These characteristics may define an enrichment. See supra note 78 and accompanying text.
168. See supra note 59 and accompanying text.
169. See infra notes 178-80 and accompanying text.
170. See infra notes 178-79 and accompanying text. This Note does not argue that any of the foregoing defenses should be dismissed casually. They are potential arguments available to MNC defendants and, on a case-by-case basis, should be evaluated to determine the extent to which they militate against an unjust enrichment claim. Nevertheless, for each substantive defense discussed, there are strong counterarguments that may protect the satisfaction of the enrichment and injustice elements, thereby offering an indigenous plaintiff hope for a successful unjust enrichment claim.
171. See Restatement of Restitution § 3 (1937) (stating principle that "[a] person is not permitted to profit by his own wrong at the expense of another"). But cf. Steve Hedley, "Unjust Enrichment," 54 Cambridge L.J. 578, 592-94 (1995) (noting that despite intuitive moral appeal of unjust enrichment, simply citing principle against unjust enrichment is vacuous exercise and, therefore, unjust enrichment argument must have more concrete justification to advance its use).
172. See Hanoch Dagan, Unjust Enrichment: A Study of Private Law and Public Values 14-16, 22 tbl.1 (1997) (examining rationales for unjust enrichment as method of recovery).
173. See id. at 41-43 (describing sense of attachment that people may have to their resources).
174. Kingsbury, supra note 2, at 421 (suggesting that desire for autonomy and self-determination is one area of commonality among indigenous groups). For a thorough discussion of the international practice of self-determination and its relevancy to indigenous peoples, see Anaya, supra note 23, at 80-88. Self-determination is not only relevant to a discussion of indigenous peoples because of their desire to attain it, but also because indigenous rights with respect to self-determination historically have been violated. See id. at 86 (discussing colonial legacy of violating indigenous peoples' self-determination). But cf. Donald L. Horowitz, Self-Determination: Politics, Philosophy, and Law, in Ethnicity and Group Rights 421, 421-63 (Ian Shapiro & Will Kymlicka eds., 1997) (cautioning that misuse of principles of self-determination can exacerbate conflict that they seek to avoid).
175. See McBride & McGrath, supra note 74, at 35-36 (noting that unjust enrichment expresses correct view of equal relationship between plaintiff and defendant).
176. See id. (asserting that purpose of common law duties is to safeguard relationships between citizens and that restitutionary duty achieves this result).
177. See Dagan, supra note 158, at 31-33 (arguing that corrective justice explanation for unjust enrichment is too limited and that distributive justice underpins unjust enrichment); see also Barker, supra note 71, at 468-74 (arguing that law of restitution may be understood largely in corrective justice terms). Professor Dagan notes that the distributive nature of unjust enrichment in part dictates its aforementioned embrace of the well-being of the resource holder. Hanoch Dagan, The Distributive Foundation of Corrective Justice, 98 Mich. L. Rev. 138, 142 (1999) ("[T]he distributive scheme underlying the law of unjust enrichment corresponds with the level of control, well-being, and sharing that the relevant legal community seeks to accord its members.").
178. Burrows, supra note 71, at 20 (quoting L.L. Fuller & William R. Perdue, The Reliance Interest in Contract Damages, 46 Yale L.J. 52, 56 (1936)).
179. See Barker, supra note 71, at 465 (explaining individualist justifications for unjust enrichment subscribed to by certain theorists).
180. Corrective justice in the indigenous context faces two problems. First, it is unlikely that lost land would be restored to indigenous peoples. Second, assuming that it was possible to restore lost indigenous land, it is not clear that the intangible expenses associated with the original loss of the territory, such as the loss of identity and culture, truly can be restored.
181. See infra notes 178-80 and accompanying text.
182. See 1983 Tentative Draft, supra note 11, § 1 cmt. b (describing deterrence function of unjust enrichment, but noting that it is not primary concern of restitution); see also Dagan, supra note 163, at 152 (noting that deterrence rationale of unjust enrichment arises from "an entailment of the [resource holder's] entitlement to control").
183. See Christopher T. Wonnell, Replacing the Unitary Principle of Unjust Enrichment, 45 Emory L.J. 153, 191 (1996) (noting that justification for unjust enrichment on deterrence grounds is that "first step toward discouraging people from committing wrongs is to make sure they cannot benefit from them"); see also Barker, supra note 71, at 465 (suggesting that argument for granting of restitutionary awards essentially is to strengthen deterrent functions of civil law). Deterrence is beneficial not only because it protects against harm to individuals, but also because it buttresses social institutions. The conduct at issue in an unjust enrichment scenario may be harmful to society at large because it violates the institutional models, such as property and contract, upon which society depends.
184. See I.M. Jackman, Restitution for Wrongs, 48 Cambridge L.J. 302, 304-21 (1989) (arguing that goal of restitution rightly is to deter conduct that subverts key institutions, including property, contract, and relationships of trust and confidence).
185. See supra note 36 and accompanying text (noting predilection of governing authorities to exploit indigenous land for personal gain); see also supra note 120 (noting doctrines providing foreign governments with immunity to suit in United States).
186. Barbara A. Frey, The Legal and Ethical Responsibilities of Transnational Corporations in the Protection of International Human Rights, 6 Minn. J. Global Trade 153, 154 (1997) ("[C]orporations believe the further removed they are from human rights abuse, the lesser their degree of responsibility to act.").
187. It is unlikely, however, that unjust enrichment will be able to reach and deter all misconduct against indigenous peoples. Indeed, in a case where the most serious abuses are of a human rights nature and are perpetrated by governing authorities, as in Unocal, the most that unjust enrichment, or any other form of liability, likely will deter is future investment by MNCs rather than the abusive conduct at issue.
188. See Gen. Elec. Capital Corp. v. DirecTV, Inc., 94 F. Supp. 2d 190, 201 (D. Conn. 1999) ("The remedy of unjust enrichment is broad and flexible . . . ." (internal quotation marks omitted)); Dagan, supra note 163, at 140 (noting range of possible measures of recovery under unjust enrichment).
189. See 1983 Tentative Draft, supra note 11, § 8 ("The means of effecting restitution include money judgments, accounting, orders requiring specific restitution, other remedies affecting specific assets, self help, and setoff.").
190. See 2 Palmer, supra note 12, § 11.6, at 525 (arguing for remedial flexibility to address mistake in transaction and noting that "[s]ometimes . . . it becomes necessary to mold the relief so as to do substantial justice in the case at hand").
191. 1 id. § 2.10, at 136.
192. 1 id.
193. See 1 id. § 2.10, at 138, § 2.12, at 158 (discussing recovery of profits as remedy).
194. Consistent with the remedial scheme of unjust enrichment, the precise percentage would be determined on an equitable basis as a court sees fit. Supra note 175 and accompanying text.
195. See Mass Transit Admin. v. Granite Constr. Co., 471 A.2d 1121, 1126 (Md. Ct. Spec. App. 1984) ("[T]he measure of the recovery is the gain to the defendant, not the loss by the plaintiff."); 1984 Tentative Draft, supra note 110, § 45 cmt. c ("[T]he measure of liability may exceed both the loss to the claimant and the economic value of the utility of the property to him."); Goff & Jones, supra note 75, at 606 (noting that unjust enrichment allows plaintiff to obtain accounting despite incurring little or no loss).
196. See Peter D. Maddaugh & John D. McCamus, The Law of Restitution 509 (1990) (asserting that action for restitution would be preferable where tortfeasor's gain exceeds quantum of damages to plaintiff). The applicability of this statement to the indigenous context assumes that an indigenous plaintiff actually would be able to make a tort claim against an MNC - an assumption that is far from certain.
197. See 1 Palmer, supra note 12, § 2.12, at 165 (noting that basic remedial question is whether retention of benefit would be unjust).
198. Cf. 1 id. § 2.4, at 68 (discussing theories of affirmance and disaffirmance as they apply to restitution and tort claims in election of remedies context). In other words, while a tort remedy merely compensates the victim but does nothing to change the prior event, a remedy under unjust enrichment would disgorge the benefit.
199. José Paulo Kastrup, The Internationalization of Indigenous Rights from the Environmental and Human Rights Perspective, 32 Tex. Int'l L.J. 97, 103 (1997).
200. Geer, supra note 33, at 350 n.68 (quoting Rafael Pandam, a director of CONAIE (Confederación de Nacionalidades Indígenas del Ecuador)).
201. See supra notes 11-14 and accompanying text.