Guidiville Band of Pomo Indians v. NGV Gaming, Ltd.

(not- Farms, B.R. at 142 Cumberland GUIDIVILLE BAND OF POMO greater preclusive policy giving

ing the INDIANS, Plaintiff- quickly which are paid, effect taxes Appellee, yet to to taxes be collect- spent, contrast ed). v. no difference that It makes therefore GAMING, LTD, a Florida NGV period applicable limitations statutory partnership, Defendant- readjustment for under petitions Appellant. Valley Central expired TEFRA before protection. Because bankruptcy

filed for Ltd, Gaming, a Florida Bankruptcy generally § Code partnership, Plaintiff- bankruptcy courts redeter- authorizes Appellant, liability tax notwithstand- mine debtor’s statutes limita- ing applicable otherwise Company, Inc., Operating Harrah’s

tions, actually must have Valley Central corporation, a Delaware remedies in Tax TEFRA pursued its Defendant-Appellee. See apply. for preclusion Court (a)(2)(A). 505(a)(1), § U.S.C. 05-17066, 05-17067. Nos. Appeals, United States Court

VI Ninth Circuit. 505(a)(1) Bankruptcy Because Argued Oct. and Submitted jurisdiction provides bankruptcy Code 26, 2008. Filed June items and nei- partnership over debtor’s 505(a)(2)(A) TEFRA preclude ther nor jurisdiction of that exercise

case, in concluding court erred district to dismiss Central required was

Valley’s objection to the Government’s tax subject matter jurisdic-

claim for lack of

tion. We therefore reverse remand consistent with proceedings further

this decision. and REMANDED.

REVERSED N. S. TROTT and

Before: STEPHEN SMITH, Judges, and RANDY Circuit SHADUR,* SHADUR,* Senior MILTON I. Judge.

SHADUR, Judge: District Senior presents single, seem- appeal This question whether ingly straightforward “is,” at least as that really word “is” means At employed in 25 U.S.C. 81.1 word is stat- present dispute, the core of Depart- requires ute (“Secretary”) ap- ment of the Interior an Indian tribe any “contract with prove period for a that encumbers Indian lands a contract years” 7 or before such more 81(a) de- valid. Section can be considered Calvacca, Law Offices of Cal- Stephen J. part “Indian lands” MA; fines the term Falmouth, Ter- Moran, West vacca the title to which held Porter, “lands Cassidy, Law Offices rence J. for an Indian tribe” Sacramento, States in trust Delehant, United Scott, Weiberg & added). (emphasis CA, plaintiff-appellant/defendant-appel- for Gaming, LTD. lant NGV (“NGV”) Ltd. Gaming Appellant NGV Kimberly A. De- M. Hart and Stephen literally—as asks us to read Section marchi, Lewis and Roca Law Offices of impli- solely to contracts pertaining O’Connell, Phoenix, AZ; L. LLP, George in trust already held cate lands & Allison, Law Offices Stevens Craig C. Harrah’s Appellees government. federal CA, LLP, Sacramento, plain- O’Connell (“Harrah’s”) and Gui- Company Operating Band of Pomo Indi- tiff-appellee Guidiville (“the Tribe”2 of Pomo Indians diville Band ans. hand, nonliteral ), urge a on the other that would the statute—one reading B. and Diane

Stanley Siegel, E. Jr. covering contracts also Bennett, 81 as Bratvold, treat Section of Rider Law Offices agreement, reach MN, defendant-ap- which LLP, Minneapolis, lands, already-held but respect Inc. with Company, Operating Harrah’s pellee * consistently re- Shadur, Appellee 2. Because that Senior Unit- Milton I. The Honorable briefs, we Judge Dis- "the Tribe” in its for the Northern to itself as ed States District ferred Illinois, by designation. sitting reference. adopt trict of the same shorthand too provisions of 25 will Title and all other 1. That “Section—,” simply omit- cited hereafter be ting prefatory "25 U.S.C." (“the Lease”), that might erty the future Lease

acquire lands Cash Management Agreement. be held in trust. Under the Here is eventually purpose contract at of the transaction issue as described at interpretation latter invalid, lacking would be the outset of Lease: in this appeal Secretary’s approval, does the (i) requires The Tribe assistance with decision to dismiss NGV’s district court’s financing day-to-day operations of Harrah’s for tortious interfer- against suit (ii) government, acquiring Tribal ence with that contract would have to be property petitioning real the United affirmed. But under the first—and liter- accept property States to title to al—reading, district court’s decision ..., trust for the benefit of the Tribe error, would be in and the state law action (iii) development, design, and the financ- proceed. could ing, and equipping construction initial of the Facility. largely by plain the meaning Motivated taking of 81—but after also Section into the “Facility,” Lease explains, includes statutes, account relevant legisla- related “buildings improvements” and that would history tive and the of the con- to-be-acquired be constructed on real tract itself—we conclude that the word “is” property that and would then be used to (in basic, just that most pres- means the II conduct or gaming3 Class Class III for word) and that ent-tense sense Sec- the public. Both to intended trans- tion applies 81 therefore to contracts to-be-acquired fer the property real into already lands held in affect trust trust, process set forth under Section 465 States. We therefore United reverse that allows the United to accept States and court and for district remand further hold for property the benefit of an Indian proceedings. tribe.4 But to be clear: No such land existed at the time the contract was en- Background I. Factual into—nothing tered had identified been or or, all, acquired least of placed had A. Terms of the been Contract trust. July On 2002 the Tribe contracted (“FEGV”) Corporation

with FEGV for NGV’s role that forward-looking en- develop latter to and construct a deavor gaming was to use its “experience, exper- facility to-be-acquired parcel on a tise ... land and resources assist Tribe” in Northern California. In December accomplishing objectives. its In ex- assigned rights FEGV its change NGV and compensated NGV would be contract, duties under which through com- a combination payments of fixed prised separate two documents: percentage gross De- and a and net reve- velopment Agreement and Personal Prop- nues earned the newly constructed 3. gaming bingo Class rights II and includes certain ... purpose provid- lands for the games, any card but excludes "banked ing card land for Indians.” In addition statute chance, games, games electronic and added): slot specifies (emphasis (Sections 2703(7)(A) (B)). machines” and any rights acquired pursu- Title to lands or gaming Class III involves all other forms of ant Act ... to this shall be taken in (Section 2703(8)). high-stakes games name of the United States in or individual Section 465 tribe Indian for which authorizes the “in his discretion, acquire, through purchase, acquired, the land is and such lands re- or linquishment, gift, exchange, assignment, rights exempt or State shall from and local lands, rights, interest water or surface taxation. Tribe had con- NGV would that submitted their facility. addition gaming (“Bu- land. rights to the Bureau of other related tract to the Indian Affairs enjoy reau”) Tribe under Lease the notably, Gaming Most and the Commission NGV’s could not without consent: agencies’ approval under both Sections sublet, of, lease, Sell, assign, Gaming 2710. Because dispose and Commis- (wheth- transfer, mortgage or encumber sion had informed the Tribe law) all voluntarily byor operation er illegal, its contract with NGV was Sanchez title, right, or interest any part of that the “no choice concluded Tribe had Lands, Facility, or to the Trust in or agreement.” but to rescind Equipment. Indeed, letter July dated set com- Finally the Lease forth several Gaming explained Commission mitments, critically impor- one of which is contract with violated Section Tribe’s It appeal. specified tant to this 2710(b)(2)(A). Agree- It stated that “the “[ojbtain necessary would all in- Developer’s proprietary ments evidence permits federal tribal appropriate activity” in the Tribe’s gaming terest necessary respect approvals proprietary that such a interest contra- enforceability of the and Cash [Lease Act Gaming Regulatory vened the Indian operation Agreement] or the Management (“IGRA”). Facility.” Among potential such of the approval was the con- approvals federal news came Bureau on Similar from the by poten- templated Section 81. Another April reviewing 2005. After the Lease federal was Section tially relevant statute Management Agreement, that and Cash 2710(b)(2)(A),which for the Chairman calls “concluded, law, that agency a matter of Gaming Indian Commis- of the National by must agreements approved Commission”) (“Gaming approve to sion Secretary under in order for Section 81 “any ordinance or involv- tribal resolution” and them to be valid enforceable.” Absent gaming II on lands. ing Class explained, the Bureau approval, matter of contract was “unenforceable as a B. Rescission of Tribe’s conclusion, noted, it stemmed law.” Its with Contract NGV provided it attor- from information to January in Beginning 2004 Harrah’s “showing Tribe that the Unit- neys for the Molate, (“Upstream”) Upstream LLC par- accepted had at least three ed States partnered to negotiations and entered into California, into County, in cels Mendocino City purchase acres of land from the in 1999.” for the benefit of the Tribe trust Richmond, Harrah’s and California. accepted 44 acres had into Those been intended to that land Upstream place they trust in 1999 with the intention on behalf of the and to use Tribe by the residential be used Tribe for would facility gaming land to build facility. not a Based development, gaming NGV, operate. According Tribe would County on the existence the Mendocino nego- Upstream began Harrah’s and those the Bureau property “determined knowing pre- Tribe’s despite tiations land’ as has an interest in ‘Indian Tribe existing obligations to NGV. 81(a),” was and that interest defined provision encumbered contractual Tribe—acting August On “affirmatively require[s] chairperson, with NGV through its Merlene San- dispos- selling Tribe to refrain from seeking a letter chez—sent NGV of an explained ing part their contract. interest rescind Sanchez long as tion agree- applied involving Indian land ... so to contracts lands yet yet remain in effect.” not and not acquired ments transferred trust; into because August having In received 2004—before had approved Interior after having Bureau’s letter re- but required Tribe’s contract with NGV as un- Gaming Commission’s deci- ceived der Section the contracts were invalid. officially entered into an sion—the Tribe granted As result the district court Upstream with Harrah’s and agreement doing Tribe’s In so granted motion. also develop manage proposed the Tribe’s Upstream’s Harrah’s and motion for sum- facility. agreement That con- gaming mary judgment, dismissing NGV’s tortious requiring tained indemnification clause interference claim as matter of law be- against any the Tribe to defend Harrah’s cause no valid contract existed between claims NGV. future made

NGV and the Tribe. History C. Procedural timely appeal. NGV filed this itWhile suit eventually against filed both court pending granted was this mo- NGV’s Upstream and Harrah’s the federal dis- voluntary tion for the Up- dismissal of court, alleging trict that those two defen- stream from the matter two because those had tortiously dants interfered with its addition, had settled. while existing contract the Tribe. Later appeal pending was Har- Tribe and filed its own lawsuit seeking rah’s their en- terminated contract and declaratory injunctive against relief agreement tered into a settlement NGV, asking to have the Lease and Cash provided part for the Tribe’s continued Management Agreement declared invalid against indemnification of Harrah’s claims under applicable statutes. federal Both by made NGV—but Tribe acknowl- against Upstream actions—NGV’s edges original that its contract with Har- Harrah’s against and the Tribe’s NGV— (the spawned rah’s one that the termi- were later consolidated. nation indemnification and its continued 28, July Tribe, On 2005 undertaking) Harrah’s and lacked the approval neces- Upstream all summary judg- sary moved for under Section 2710. by

ment. NGV responded contesting the district II. Standards of subject jurisdiction. court’s matter Review It claimed that there was no case or con- both We review of existence troversy Tribe, between and the NGV for subject jurisdiction grant matter and a of NGV had Tribe assured the that it would (Galt v.G/S summary judgment de novo not file an action it. against part For its Scandinavia, JSS 1150, 142 F.3d 1153-54 subject contended that there was (9th Cir.1998)). In reviewing the latter (1) jurisdiction matter upon based decision, we determine whether are there obligation Tribe’s indemnify to Harrah’s any genuine of issues material fact (2) against by claims made NGV and trial, viewing light the evidence in the Tribe’s continuing developing interest a (Gam most favorable to nonmovant gaming facility fear litigation. without of Habra, moh v. City La 1114, 395 F.3d of Cir.2005)). (9th On 19, October 2005 the district 1122 court We also de review granted the declaratory Tribe’s motion for novo interpretation of construction (Soltani relief. Co., (1) In particular court v. W. & S. held that Ins. statutes Life it had subject (9th jurisdiction Cir.2001)), matter over 258 F.3d well as Tribe’s action; declaratory relief as the contract principles interpretation Sec- (L.K. an bootstrap us cannot itself into before to facts applied controversy Article or III case vis-a-vis Eng’rs & Co. v. Con & United Comstock a undertaking NGV indemnifica- new Inc., 880 F.2d Cir. structors obligation to part agreement tion 1989)). with terminate its void contract promise Harrah’s—an indemnification Against Tribe’s NGV The Claim III. wholly lacking in and is consideration to begin with the Tribe’s effort We hence itself invalid.7 a declaratory judgment, seeking obtain a short, the Tribe—which does not it proclamation agreement that its any potential liability self face to NGV ap not been because it had was invalid try must to fall back on claimed sense its Secretary pursuant Sec proved any essays into uncertainty about future alternative, or, in the because tion 81 industry. uncer gambling But those have no 2710. We occa violated Section space—they tainties exist outer those ques the merits of sion to decide NGV, surely against cannot be trotted out stage least not at this tions—at any longer with which the Tribe no has conclude that opinion5—because we relationship any going contractual on belong in the federal efforts do not Tribe’s exposure liability. such uncer Instead all. courts at wholly speculative tainties concerns raise that the Tribe’s claimed undisputed It is type advisory that call of purely it from adversary NGV has released opinion prohibited that federal are courts whatever, looking solely instead liability from putative the Constitution giving And the Tribe against claim Harrah’s. (see, City litigants e.g., Angeles Los recognized management itself 95, 106-07, 110-11, Lyons, 461 U.S. (which would have with Harrah’s contract (1983), holding L.Ed.2d S.Ct. obligation it an imposed on indemnification could that he Lyons that because not show Harrah’s) covering against NGV’s claims threat of “faced real and immediate 2705(a)(4) under Section due to was void choked,” was again being illegally his claim ap- failure to have obtained the Tribe’s in nature could “speculative” and therefore proval of that contract the Chairman not meet Article Ill’s or controver “case so, sy” requirement). That Gaming being Commission.6 agreement 2007 but their back March of 5. the Tribe and advance the Because Harrah’s why arguments argument as to same substantive fact until concealed that oral (re- and agreement between the Tribe upon us later case almost months was invalid, and because is no doubt that there was member that terminated contract subject jurisdiction court has matter over this hang peg sought on which the Tribe Harrah’s, against eventually we claim NGV’s hat). jurisdictional Now seeks to (see IV)— Section reach the merits the case supplement materi- the record before us with just not do the context of the we do so in previously NGV and al withheld both from claim. Tribe's salvage its in an from this Court effort text, any indicated in the claim. But as agreement Har- 6. Because the Tribe’s with controversy as between claimed case or subject statutory pro- to a different rah’s was their ceased to exist once Tribe and NGV applicable from section vision terminated NGV released contract was NGV, agreement such Section Tribe’s with potential liability, given from Tribe 2705(a)(4) invalidity did not extend to the original invalidity Tribe-Harrah's latter. agreement indem- that contained the claimed disturbing the Tribe and It is most provision. nification parted company by terminating Harrah's stated, already op that alone should lationship; resulting damage” As (Tuchscher Enters., Dev. Diego the Tribe out of the box in Inc. v. San erate to knock Dist., 1219, Port standing pursue litiga Cal.App.4th its own terms of Unified 57, Reptr.2d 132 Cal. poses (Cal.Ct.App. a dramatic tion. This case scenario 2003)). At appeal issue this is the first litigation patent such as case contrast element of the tort: (see, NGV contends that its declaratory judgment seeking e.g., contract with the Tribe was valid because en Alumini Société de Conditionnement it did Co., require approval not under 938, Section Eng’g Hunter 655 F.2d um v. 81, (9th Cir.1981)), argues while Harrah’s that the contract 942-44 where there are was precisely invalid because it lacked dispute two involved alternative, approval. Har- immediacy actual interests “of sufficient argues rah’s that the contract violated reality” (Maryland Sec Cas. Co. v. Pac. 2710, Co., 270, requires tion which 273, an “Indian Coal & 312 U.S. Oil S.Ct. (1941)), proprietary tribe have the sole interest though 85 L.Ed. 826 even no and responsibility any gaming activity.” infringement brought. action has been We address each arguments of those If, as and when Tribe chooses to turn, tackling inquiry the Section 81 first. engage proposed entry a future into inquiry That calls for a consideration of a gambling activity with some other party factors, number of including plain lan- may then seek a declaration of its (if statute, guage of the any) the role of 1 rights under a contract with that party, and, legislative history U.S.C. relevant may perhaps subject be federal there mat- course, the actual language agree- (a jurisdiction subject ter to address that ment that once bound NGV and the Tribe. question that need not be answered here purely hypothetical). because it is But Language A. Plain of Section 81 here, contractual relationship with the analysis begins Our plain with the once bound NGV and the language of Section terminated, having because been there is no one on that is the natural starting point dictated the other side of the “v.” sign from the accepted all statutory canons of con jurisdictional Tribe—and that is fatal in struction but also because the terms. thus vacate statute’s We the district court’s unequivocal present-tense use of grant decision to the word declaratory Tribe the “is” does a tremendous amount of the sought. leg relief it

work in settling one of the main questions 81(a) Against raised on IV. Claim appeal. In full Section NGV’s Harrah’s (em defines the term “Indian lands” as We turn now to NGV’s claim that added): phases tortiously Harrah’s interfered with the lands the title to by which is held the contract that once bound the United States in trust for an Indian Tribe. Under California law ele “[t]he tribe or lands the title to which is held ments of a cause of action for intentional by an subject Indian tribe to a restric- (1) interference with contract are: a valid by tion the against United States alien- contract plaintiff between and a par third ation. (2) ty; defendants’ knowledge of the con 81(b) (3) tract; Section then prescribes: defendants’ intentional acts de signed to induce a breach or disruption agreement No or contract with an Indi- (4) the contractual relationship; actual an tribe that encumbers Indian lands for disruption breach or of the contractual re- a period years of 7 or more shall be simply on is contract cumbrances “Indian lands” agreement that valid unless Secretary of to this approval inapplicable the the case. bears designee of the Secre- the Interior or Dictionary B. Role of the Act

tary. Interpreting in Section 81 contract In the this instance Tribe-NGV purview the of Section was not within Contrary to the raised the contention “Indian plainly implicate it did not because dissent, in nothing reading our of Section 81(a)’s statutory lands” in terms. Section l.8 More com- contravenes U.S.C. defining in “Indi- present use of the tense Act, Dictionary to monly referred as the unambiguously that prescribes an lands” in part: that statute reads relevant title real estate must be determining the meaning Act for a held the in trust United States Congress, unless the context indicates Congress tribe. Had intended that Sec- otherwise— might to tion also lands extend trust, later have been be held would used tense include present words of matters to the statute simplest word future as well present. as the That it did so is not a differently. not do Focusing upon phrase “words used in (see linguistic lightly to be decision treated tense include the future present McCarthy, SEC v. 322 F.3d present,” dissent well as asserts Cir.2003), ex- explaining “Congress’s 81(a) word “is” as used Section plicit to use one over anoth- decision word currently encompasses both lands that are drafting er in a statute material” and is in trust for an held United States that is im- adding that decision “[i]t might tribe and eventu- lands that legal significance bued and should not with But in ally be held similar fashion. so presumed to devoid of be random or doing, grapple the dissent ade- fails CIR, 982, 987 meaning”; Biehl v. 351 F.3d re- Supreme Court’s quately (9th Cir.2003), not writing that courts “will stat- peated regarding proper instructions statutory to cover a stretch the (2) the directive in utory construction and contemplated by Congress”). situation us Dictionary compels Act itself their con- Here the entered into first the of the statute. consider “context” contemplating—specifically tract expressly First, has not Supreme land would later be identi- Court intending-—that in an ef Dictionary Act acquired fied and then still later once invoked unambiguous held to convert an verb tense to the United States to be fort transferred go then ambiguity, lands claimed let alone the Tribe. But no such into trust for ambi employ that manufactured ing the Tribe and NGV entered on existed when altering portion guity stepping into as a stone their contract. Hence Here is plain limits of en- sense of statute.9 81 that the duration Section the Su by either those limited occasions statute was not adverted to 9. On That Act, (or Dictionary original briefing appeal preme Court has turned to the party in the on the court). meaning We so to illustrate better before the district it has done that matter "person,” statute de word which the input litigants from the on that score invited "includ[ing] companies, party corporations, following argument, each oral fines firms, associations, societies, through partnerships, ample opportunity had to address companies, well as individ question joint stock supplemental briefing the of their (see, e.g., Inyo County, Cal. v. Paiute- Dictionary Act has on what effect the uals” if Cmty. Bishop Indians interpretation of Shoshone Section 81. of 776 directive United States v.

succinct Wil “Context” here means the text of the son, 329, 333, 1351, 112 503 U.S. S.Ct. 117 Congress Act of surrounding the word (1992) and L.Ed.2d 593 the cases that it issue, at or the texts other related cites: Acts, congressional simply and this is an ordinary instance of the word’s meaning: a Congress’ signifi- use of verb tense is part parts or See, pre- “[t]he of a discourse construing cant e.g., statutes. States, 43, 49-50, ceding following 419 or a ‘text’ or passage Otte v. United U.S. 247, (1974); word, 42 L.Ed.2d 212 95 S.Ct. or so intimately associated with Gwaltney Smithfield, Ltd. v. Chesa- light as to throw upon meaning.” Foundation, Inc., peake Bay 484 U.S. Webster’s New International Dictionary 63-64, 4, 376, 49, n. 108 S.Ct. 98 L.Ed.2d (2d ed.1942). 576 While “context” can (1987). 306 carry a secondary meaning of “[a]ssoei- ated surroundings, whether material or Co., Similarly, Sigmon Barnhart v. Coal mental,” ibid., we doubt that 450, the broad- 438, 941, 534 U.S. 122 S.Ct. 151 er applies sense here. L.Ed.2d 908 made clear that in “all statutory cases, begin construction we Rowland, And id. at 199 went on to ex the language Inquiries of the statute.” plain that the word “indicates” broadens meaning into the aof statute come to an the scope inquiry that a court must statutory language end “if the unambig (id. 716): 200, 113 make at S.Ct. statutory uous and the scheme is coherent (id., If “context” thus has a narrow quoting compass, and consistent” Robinson v. Co., 337, 340, Shell Oil 519 U.S. 117 “indication” contemplated by S.Ct. 1 (1997)(internal 843, 136 quota L.Ed.2d 808 U.S.C. 1 has broader one. The Dic- omitted)). tion marks specific Given the tionary very Act’s reference to contextu- unambiguous manner which Section al “indication” bespeaks something more 81(a) lands,” defines the term “Indian it is than an express contrary definition, and apparent why Dictionary Act must hardly courts would need direction even be consulted. Congress where thought had to include express, specialized definition for the

Second, even on its own terms the Dic- purpose Act; particular of a ordinary tionary supports analysis Act here: It rules statutory construction would “context,” looks first if the prefer specific definition over the meaning “context” leaves the open to in- Dictionary terpretation general Act’s provision does the default one. Where a Rowland, come court play. help into As defined needs is in the awkward case 199-200, (altera- 506 at U.S. 113 Congress S.Ct. 716 where provides particular no added): tions in original, emphasis definition, but the definition in 1 U.S.C. 701, 1, ton, Bishop Colony, 1207, 538 U.S. Cir.2000)). 713 n. 123 231 F.3d 1887, (2003) (Stevens, S.Ct. 155 L.Ed.2d 933 And on one other occasion we have relied on J., concurring judgment); Rowland Dictionary v. Cal. simply Act to corroborate an 194, 196, Colony, Men's 506 U.S. independent S.Ct. solely conclusion—derived from 716, (1993); Ngiraingas 121 L.Ed.2d 656 plain "the of the statute”—that Sanchez, 182, 190-91, 495 U.S. 110 S.Ct. present criminal statute written in the tense (1990); L.Ed.2d Will v. Mich. penalize past cannot be used to behavior Police, 58, 69, Dep't (United Jackson, State 491 U.S. States v. 480 F.3d (1989)). (9th Cir.2007)). S.Ct. 105 L.Ed.2d 45 We our Because none of those cases Dictionary here, selves have relied approaches on the Act for presented the situation none (see purpose same United States v. Middle affects this decision. investigate, among things, that other duty There it is to not to fit.[10] 1 seems indi “unless the context qualification for which the land will be used purpose the do, in job a real cates otherwise” into placing the effect that the land square a forcing court from excusing the have on the tax of local trust will bases hole. into a round peg Mary Sheppard, Jane Tak government; mind, a we consider guidance Trust, With that L. Indian Land Into S.D. ing to Sec- congressional acts related series of (1998-99) (“Sheppard”),12 687-88 Rev. 465, 2719 81—specifically, Sections tion similarly describing comprehensive na clearly an “awkward” avoid and 271—that review). During such ture of a Section 81. rendering of Section required a tribe is to ad a review first particularly 465 and 2719 are Sections dress, issues, among other its need for the instructive, directly to the they respond for land, for purpose which the land will construing that Section concern dissent’s used, land taking the effect that contracts applies that 81 so have and local into trust would on state al- lands in trust would involving whether a deci political subdivisions and review entire- to evade federal low take the into trust would sion to land fears, ly. parties, the dissent Manipulative Environmental comply with National advantage interpre- of take could Eng.L. (see Scrivner, Policy Act 37 New carefully orchestrating the tim- tation 606). initial information Rev. at With that any agreement provision so that ing of hand, Department the Interior exe- encumbering Indian lands would be gives governments state and local then placing land in trust. only before cuted object applica opportunity to to the tribe’s adequately are fears more than But such through “evidentiary documentation” tion by the assuaged existence Sections why the land into demonstrating taking a of which that guarantee both “impact[ jurisdiction their ] trust would and the as the one that NGV contract such (id. 607). Only at after all their tax base” escape into can never had entered provided input their does sides have government’s attention. the federal begin independent ex Department own n. First, (already quoted Section pro a application, amination of trust 4) regulations set implementing and its thorough analysis “requires cess process forth an extensive review documentation, environ all the facts and undertake Secretary Interior must clearances, studies, archaeological mental (see, e.g., lands into taking before into the things weigh and all of 151.3, 151.11(c); Larry E. §§ C.F.R. Scriv (id.). subject Any final decision is action” ner, Land Trust Indian Acquiring into for similarly Eng.L. administrative to a extensive both Tribes, 37 New 606-07 Rev. subsequent re process (2003)(“Scrivner”),11 appeals describing the trust (id.). Secretary’s federal courts process view the application piece, authored that by this course that 11. At the time Scrivner Court] 10. Of [Footnote strengthens serving alone our Bu- acting observation further director of the he was position Dictionary Act need original Responsibilities. Office of Trust reau’s considered, Congress given not even be specific term provide a definition of the did previously Sheppard has served as staff 81(a). We none- "Indian lands" Section attorney Gaming Commission and path analytical so continue down this theless Affairs, Office of the Division of respond argument on its dissent's Department the Interior. in the Solicitor own terms. cases If relatedly, any And where the tribe fail State should to enter into 2710(d)(7) such negotiations, lands transferred into pro intends to use trust Section 2719(b)(1)(A) Section vides the Indian gaming purposes, tribe with a series of remedies, including right to requires that first “deter- initiate an action against the State federal district gaming that a establishment ... mine[ ] action, court. But bring to an as the in the interest of the would be best Indian Sixth Circuit held in members, Match-E-Be tribe and its would not be -Nash-She-Wish Band Pottawatomi In surrounding detrimental communi- to dians Engler, F.3d (see ty” Sheppard, also S.D. L. Rev. at Cir.2002), the Indian tribe must show that 687). short, any concern that NGV was it has “Indian by lands” defined IGRA system by trying game executing to its at the time of filing. Match-E-Be-Nash- Tribe before transferring contract with the She-Wish, id. out spelled the rationale un wholly land into trust is unfounded. In- derlying its conclusion terms that bear any stead to take later(cid:127) effort lands into considerably on question the Section 81 triggers trust an extensive review process now before us: by review Secretary—a is far 2710(d)(3)(A), Under it is clear that any more than meaningful pro- Section 81 the State have an obligation does not ceeding not-yet-iden- deal would negotiate with an tribe until the might tified lands that be taken into trust tribe has purposes Indian lands. The future, because Section pro- requirement appear to be to ensure ceeding suitability addresses the of a spe- be casino will inside the borders parcel of land in all respects, rather cific State, give the State notice of process than totally speculative that is be, where it will to require the tribe necessarily involved when a presently un- place have a casino that has acquisition known sought future is to be been federally approved. If the Indian subject attempted made the analysis. tribe any does not have land the State 2710(d)(3)(A) 2710(d)(7) Sections that can casino, be for a used why also help meaning illuminate the of Section should the its State waste time negotiat- 81, particularly part because both are ing about such a casino? In the absence parcel IGRA, which defines “Indian location, of a State would have no lands” in much the same manner as Sec- way to environmental, assess the safety, (see 2703(4)(B) tion 81 Section (emphasis traffic, problems and other that such a added), “Indian defining part lands” in casino pose. could “any lands title to which is held in trust Accord, Mechoopda Indian Tribe Chico the United States for the benefit of Rancheria, Cal. v. Schwarzenegger, No. ”). 2710(d)(3)(A) Indian tribe.... Section S-03-2327WBS/GGH, Civ. 2004 WL provides: (E.D.Cal. Mar.12, 2004). at *5

Any having jurisdiction Indian tribe over Given practical concerns, those it is no upon the Indian lands which a class III wonder that the policy Bureau’s has been gaming activity being conducted, or is to review contracts under Section conducted, request shall the State when they currently involve lands held in in which such lands are located to enter the United States. That policy is into negotiations for the purpose of en- evinced April the Bureau’s own tering into Tribal-State compact gov- Tribe, letter to the which made clear that erning the conduct of gaming activities. conclusion that the agree- NGV-Tribe

779 lands were transferred ter-acquired 81 to be for lack of Section was invalid ment any Tribe’s have then- on the into trust obviated need to predicated was approval its the Bureau to under having approved alerted contract Section 81. lawyers not to the County property, Mendocino conclusion, there is no reason to re- lands.13 acquiring future trust of possibility Dictionary rules of sort to the Act’s default further confirmed policy That same statutory interpresentation. Instead in the record an affidavit included through clearly here indicates that Section context (“Gover”), a from Kevin by NGV Gover only reviewing limited to those con- 81 is Af- Secretary for Indian Assistant former involving trust lands. presently tracts held tenure during attests that his fairs. Gover 2001, to “it was early late 1997

from Legislative History C. of Section 81 policy practice to review the [Bureau’s] reading of is fur Our literal 81 Section such con- to determine whether contracts legisla ther corroborated the statute’s 25 scope fall within of U.S.C. tracts history.14 In seeking persuade tive to us 81(b) ... in the of the existence absence in plain- to read Section 81 other than Instead, in cases “where trust lands.” of terms, language points Harrah’s to some between purpose contract claims, that, identify legislative cases and a tribe to assist developer [was] history 81 a nonli- supports of Section that peti- acquiring property, real tribe reading. those teral We have reviewed accept to title to tioning the United States pertinent legislative as the cases as well of in trust for the benefit property history, and we conclude that those tribe,” would be the Bureau’s review only posi fail to support sources not imple- regulations pursuant done they that tion advanced Harrah’s but it: puts 465. As menting Section Gover plain- own instead further corroborate our Secretary’s of title to the acceptance “[t]he statutory reading. petition- for the subject property Harrah’s seeks call to its aid Thus to required all ing approvals tribe subsumes Indians, v. Montana law.” all of that Federal And as under Blackfeet 766, 2399, 759, 85 105 S.Ct. 471 U.S. us, fact that to the facts before applies (1985), signifi- but that case eventually have L.Ed.2d 753 and NGV the Tribe would its view in terms that fed- cantly if their la- couched undergo Section 465 review analysis its the NGV-Tribe "[a]t In that letter Bureau wrote irrelevant review, stage our it was not clear contract. earlier any title to the United States held whether and, Tribe, sure, Rowland, in trust for the benefit of the land U.S. at 113 14. To be consequence, agreements history whether legislative as does not treat S.Ct. 716 in 25 'Indian land’ as defined congressional covered act as part the "context” of a 81(a)” adde'd). (emphasis Dictionary Thus But U.S.C. used in the Act. that word is applied to history a fre legislative Bureau concluded Section course remains with after quently-relied-upon “[a]t- contract tool of statuto NGV’s additional (see, agen- torneys provided ry interpretation e.g., [the the Tribe ... Inc. Perfect LLC, showing F.3d Cir. cy] with documents that the United CCBill 2007), plain-language in accepted parcels explaining in Men- at least three its States California, was also County, terpretation of the statute at issue into trust for docino legislative history”). And it “supported Bureau the Tribe in 1999.” If the benefit of particularly appropriate consider applying con- Section seems had viewed here, history when involving legislative of Section 81 that would later tracts lands trust, sought to bolster each of the into the existence of transferred County arguments been with information. property would have Mendocino relating to Indian tribes “are resented a fundamental break with [the] eral statutes (see id.). liberally in favor of the policy” underlying to be construed Section 81 As (alteration Indians, ambiguous provisions inter Report, the 1999 Senate id. added). (emphasis preted to their original quotation and internal marks omit- benefit” ted) proposition that does not aid Har- Here say: went on to rah’s, present-tense for Section 81’s word purpose [Reorga- The intent and In ing ambiguity.15 leaves no room nization was to develop Act] the initia- deed, concept even the Tribe of Blackfeet destroyed by century tive of oppres- “in liberal construction favor of the Indi paternalism.... sion and seeks to [It] reading ans” does not call for nonliteral get away from the bureaucratic control 81(b), requiring that more— of Section of Department, the Indian and it seeks approved rather than fewer—contracts be give further to the Indians the control of 81(b) “would frustrate under Section Indi their own prop- affairs and of their own promote tribes’ efforts to economic de erty. (Penob velopment autonomy” and fiscal Following passage of the Reorganization Me., Key scot Nation v. Bank Indian Act, agencies administrative and courts (1st Cir.1997), adding F.3d were left “with the difficult task of recon- “analysis that the court’s reflects the mod ciling an sought pro- 1872 statute that policy away ern in federal Indian trend by tect Indian imposing tribes extensive paternalistic practices from outmoded oversight federal with a 1934 Act intended policies”). to disentangle the tribes from official bu- Section 81’s own evolution confirms the (id. (internal omitted)). reaucracy” citation that more modern advent of attitude to- Fortunately Congress simplified that task tribes, a perspective ward Indian in 1999 when it amended Section 81. acknowledge. dissent does not That stat- amendments—which, Those among other ute enacted in originally was 1872 to “re- changes, replaced the term “relative to” Congressional concerns that ] Indi- flecte Indian lands with “encumbers” Indian ans, individually or collectively, either were that lands16—“ensure[d] Indian tribes will incapable protecting themselves from engage array able to in a wide of com- fraud in the conduct of their economic mercial having transactions without to sub- Rep. (see 106-150, affairs” s. at 2 No. mit agreements those to the BIA as a (1999), adding first princi- “[t]he (id. 9; precaution” id., at see also express- pal need then was should be [Indians] ly noting that the 1999 amendment “elimi- shielded alike from their own improvidence nated overly-broad scope” of Section others”). spoliation and the But in 1934 81). Congress shifted the focus of Indian policy by enacting Reorganiza- the Indian simply, “elimi the tables have turned since Act”) tion (“Reorganization Act that “rep- Although 1872. at an point earlier courts (if any) weight Even less indeed is to be Indians that were ''relative to their lands” 15. (see comparable language ascribed to the year 25 U.S.C.§ em 81 as it existed until the Moreover, ployed 2000). Mgmt. Mgmt. in A.K. v.Co. San Manuel Band A.K. involved a dis Indians, pute Mission 789 F.2d over land that Cir. was held in trust 1986), sought by appel also the United States for an Indian to be relied on tribe. For reason, then, Mgmt. more than lees. A.K. one that case involved an earlier and does sub stantively today's not at all influence outcome. different version of Section 81—one that did speak '‘encumbering] lands,” agreements but rather of made with 16. See n. 15. acreage was taken into trust may able to use the have been Black-feet for the United States benefit of the Tribe justify a nonliteral presumption Tribe before well NGV and certainly the most expansion of Section relationship. their But formalized business makes to that statute amendment recent County really the Mendocino land issue is self- considers Congress clear that now herríng: unambiguous a red Both the lan- inbe paternalism—to determination—not and, guage impor- of the Lease at least as goal interest. And the Indians’ best tantly, equally unambiguous facts as to a literal rath- directly advanced more property itself that the Men- confirm reading of Section er than a nonliteral County lands not at all within docino are parties’ and purview the transaction Language of Lease and D. the arguably therefore not encum- County were even Mendocino by bered the Lease. Property Lease, and the terms the NGV Under said, to the all of that we turn now With partnered develop Tribe a casi- the not to the demon- language of Lease to actual land, the existing no on tribal but because present-tense that under the literal strate ... “require[d] acquiring Tribe assistance 81, it to apply not reading of Section does the property petitioning real United al- States the lands United accept property to title States to such for Tribe’s benefit ready held in trust the (empha- trust for the benefit of the Tribe” was agreement at the time the Tribe-NGV added). County sis With the Mendocino Taking our ad- into. issue with entered having in hand—and property contract, the specifics the dressing parties into accepted been trust—when that this task best left argues is a dissent deal, cannot into their the Lease entered court, instance to the district the first (or con- fairly providing be read as even is in- particularly “parol evidence” when or property that such would templating) on the reading But our is based volved. the casi- could become the eventual site of (see 17), n. the contract itself words of all, at It would make no sense no. always been interpretation contract course, already- “acquiring” speak prelimi- law that no pure matter of needs it must be re- property. real And owned And nary screening by the district court. County that membered Mendocino directly ad- our to the contract reference for expressly had property acquired been argument—indeed Harrah’s dresses development, for commer- not residential appeal— it has primary one that raised on suggests that development. Nothing cial implicates the Mendocino the Lease any respect changed had purpose held property already County, California or at time that NGV either before it is ex- for the Tribe. Because trust agreement. entered into their Tribe nor ceedingly plain neither the contemplated that the document NGV ever fur- language from the Lease Additional County According would extend Mendocino our supports ther conclusion. binding lands, List,” that the agreement we hold Definitions the Lease’s “Master was without those two valid is as: “Trust Lands” described Secretary’s approval. by States in Property held the United the benefit of the Tribe. Trust for Tribe’s

It course true that the is of in turn in terms of “Property” as “In- is defined County qualify in Mendocino acres future, add- present (emphasis dian as that term is defined lands” ed): it is true that equally Section And upon agreement which the Struc-

The real ties’ could somehow have violat property before, by Developer, ed Section 2710. As that inquiry be constructed ture will begins plain statutory will recourse construction which at the time of terms, language. express And Sec the United States in titled to pertains only tion 2710 to tribal Tribe. ordinances benefit of or resolutions—not tribe’s contract similarly defined “Structure” is as: third party—so nothing with a in that and improvements con- buildings The impairs validity statute of the Tribe- installed on the Trust structed and agreement. operates Lands on which 2710(b)(2)(A)(emphases Under Section Facility. added) the Chairman of the Gaming Com- “Facility” finally, And defined as: mission: Structure, equipped ready for The approve any shall tribal or ordinance conduct Gaming the Tribe to concerning conduct, resolution public. II regulation gaming class on the chain, the Lease With definitional lands jurisdic- within the tribe’s sought by be relied Har- provision on if such tion ordinance or resolution pro- reasonably rah’s be as em cannot read vides that— bracing acreage the Tribe’s in Mendocino (A) .... the Indian tribe will have County. done, “Proper If that were proprietary responsi- sole interest and ty” would defined not be in the future bility for any gaming the conduct of and “Facility” tense and “Structure” would activity ... not be in terms of a public gaming defined appeal argues On Harrah’s that NGV’s facility private housing. rather than agreement with the Tribe violated that short, County because Mendocino statute because the terms of the Lease already property was held in trust and eq- allowed NGV to assume the dominant because it been slated'— specifically had interest in uity gaming eventual facili- and remained slated—for residential devel- ty. arrangement, contends, That it is opment, property simply devel not does concomitant to having a pro- NGV “sole provision come within the of the Lease prietary facility. interest” in the gaming restricting ability the Tribe’s to alienate “Trust Lands.”17 Section plain But 2710’s re- that notion futes because Harrah’s conclu-

E. Inapplicability of Section 2710 sion rests on a premise. false Here there To point we have demonstrat was no “tribal ordinance or resolution” (note ed ways why number different that the implementing regu- statute’s inapplicable Section 81 is to the situation “gaming lations likewise refer to ordinance finally ”) (see before us. But we on to adopted by soldier or resolution a tribe briefly far speak substantially added)). § more 522.1 (emphasis C.F.R. That more possibility attenuated par that the language simply speak does to con- noting 17. It is worth agreement. NGV maintains that in interpreting dence their Be- Sanchez, deposition which is included clarity cause of the matters record, position further bolsters its discussed, we have no need felt to look to the parties agreement never intended their and, result, deposition as a no need to resolve cover the County property. Mendocino On parties' disagreement propriety over the appeal have vigorously disputed parol evidence. whether parol we should consider such evi- against and a resolution of action Har- a tribe NGV’s entered into between tracts (as legis rah’s on the merits. contrasted with tribal party third officially enacted regulations or lation PART; IN VACATED REVERSED tribe). further forti reading That AND REMANDED IN PART. contrast between Section sharp fied 2705(a), a related statute and Section SMITH, Judge, N.R. dissenting: Circuit or of both “tribal ordinances speaks contract specific type respectfully and a I following resolutions” dissent First, a third may majority rejects a tribe enter into with reasons. agreement Thus the Tribe’s party.18 unambiguous Congress clear and will of Second, cannot to violate Section 2710 application be said of 25 U.S.C. application either.19 because of its error in the of 25 majority is thereafter U.S.C. (1) forced to reverse the district court V. Conclusion interpreting contracts that the district judgment in the We first vacate the (2) review; making court did not its own declaratory judgment action Tribe’s determination that the contracts were un- that action for against NGV dismiss (3) ambiguous; using parol evidence to subject jurisdiction. As the lack of matter interpret though contract even finds Har- Tribe’s contracts with both NGV and unambiguous; were contracts rescinded, have been there is no rah’s parol picking choosing which evi- controversy” at issue as between “ease rely, though dence on which to even NGV, leaving us with no district court had not addressed the issues jurisdiction federal on score. and, if parol of whether to admit evidence requires further hold that Section 81 We so, what to admit. I would in- evidence by only as to those approval summary stead affirm the district court’s implicate lands held contracts judgment dismissing tor- decision NGV’s for an Indian in trust the United States complaint against Har- tious interference the contract between the tribe. Because appeal rah’s and dismiss the for declarato- implicate and NGV did not such ry relief filed the Tribe as moot. lands, ap- it remained valid without such proval. We further hold that the same I. 2710, contract also did not violate Section govern- “The doctrine that the federal pertains only for that statute tribal ordi- resolutions, fiduciary relationship to a ment stands in a nances and tribe’s a our part All Native Americans has been of agreement party. with a third of those true, early days law since the things being judg- we reverse the common HUD, Sec’y Eric v. 464 Republic.” ment in Harrah’s favor and remand for 2705(a)(3) (^(emphas- nothing in the record indi- 19. We note that 18. Under Sections added) Gaming the Chairman of the Com- es that the Tribe forwarded a tribal ordi- cates mission can: Gaming Commis- nance or resolution to (3) approve tribal ordinances or resolutions review, any for it or even that sion regulating gaming class II and class III existed. Instead the ordinance or resolution gaming provided 2710 of this in section chairperson reflects that the Tribe’s record title; and Management and Cash forwarded Lease (4) approve management contracts for class Agreement agency. to the gaming gaming provided II and class III 2710(d)(9) and 2711 of this title. sections 784 (D.Alaska 1978) case, 44, § (citing apply parties’ 46 we must 81 to the

F.Supp. (5 contracts. Georgia, v. 30 U.S. Cherokee Nation (1831)). Pet.) 1, 25 L.Ed. “Over 8 statute, interpreting “In we look first all levels have sustained years courts at statute, plain language con in its relations with Na the doctrine that law, struing provisions of the entire government special owes a peoples tive including object policy, to ascertain to those of a trustee.” Id. duty analogous Congress.” the intent of v. United States States, 224 v. United U.S. (citing Heckman Middleton, 1207, 231 F.3d 1210 Cir. 424, (1912); 413, 56 L.Ed. 820 32 S.Ct. 2000) (quoting United States v. Mohrbach States, 316 Nation United Seminole (9th Cir.1999)). er, 1041, 182 F.3d 1048 1049, 286, 62 86 L.Ed. 1480 U.S. S.Ct. undefined, statutory term is we When Fox, (1942); 361, v. Red 564 F.2d Red Fox give ordinary endeavor to term its (9th Cir.1977); Manchester Band 365 avoid, meaning. Id. We are instructed to Indians, States, Inc. v. 363 Pomo United if possible, interpretation that would (N.D.Cal.1973)). This is a F.Supp. 1238 produce unjust “an absurd and result “unique relationship between Indians and Congress which could not have intended.” relationship government, federal York, (quoting City Id. Clinton v. Newof is reflected in hundreds cases and is 417, 429, 2091, 524 141 U.S. 118 S.Ct. further made obvious the fact that one (1998)). L.Ed.2d 393 pertains bulging volume of U.S.Code Act, Dictionary Congress In the mandat- (quoting to Indians.” Id. White v. that, in determining meaning ed (D.S.D.1977), Califano, F.Supp. 555 Congress, Act of “unless the context indi- (8th Cir.1978)). 'd, F.2d 697 aff cates otherwise ... words used in the present tense include the future as well as duty, special Consistent with this Con Thus, present.” U.S.C. 1. when gress protect “to enacted 25 U.S.C. interpreting the definition of “Indian improvident the Indians from and uncon §in lands” we must read the words scionable In re contracts” San “which ...” is held to also include born, 222, 227, S.Ct. 148 U.S. land “which will be held in trust....” Id. (1893). time, L.Ed. 429 Since Con Recent Congressional discussion of the gress 81, § removing provi has amended § purpose supports of 81 such a reading. antiquated sions that were and unneces protect Section 81 “is intended to sary. Indians Rep. See H.R. 106-501. The 81(b) improvident from present contracts and is con- §of states: primarily cerned with federal control over agreement No with an or contract Indi- contracts between tribes or individ- Indian an tribe that encumbers Indian lands for ual Indians and non-Indians.” H.R. See a period years of 7 or more shall be Rep. Congress clearly 106-501. does not agreement valid unless that or contract want Indian tribes to enter into contracts bears approval Secretary the of the that would encumber their trust lands for designee the Interior of the or Secre- years more, seven without the added tary. protection Secretary of the Interi- The term approval. § “Indian lands” is defined or’s Limiting 81’s definition 81(a) § as: “lands the title to which is held of Indian present lands to tense— by the United States in trust for an Indian land which “is held trust”—undermines 81(a). (hereafter tribe.” § 25 protection § U.S.C. re- provide 81 is intended to lands”). ferred to as majority’s “trust To decide this to the Indian tribes. Under

785 the intent of circum- ture tense furthers both Con- 81, easily can parties § reading of fully Supreme intend- direction of the parties, gress The and the the statute. vent Indi- will encumber their contract that we must construe statutes ing that Court can years, than seven for more broadly an lands of the Indian tribes. favor their contract before simply execute § plain language 81 to Applying Because conveyed into trust. are lands contract between the Tribe and NGV to land pertain a contract would exercise. The Tribe straightforward is a by the United held in trust presently regarding and NGV entered into contracts tribe, Indian the contract for an States which are or will be held in trust for lands of the Sec- require approval would not years. upon Based seven or more true This would be retary of the Interior. 81, § provisions applied always intended though even However, of these contracts. approval in trust land would be held that the approve Interior did not Indian tribe and for the United States Thus, lan plain the contracts. under the explicit if contained even the contract 81, they § are invalid. 25 U.S.C. guage of the land be held requiring that provision invalid, § are 81. Because the contracts the Indian States for trust the United cannot establish the first element of tribe. interference cause of action its tortious and Ninth Longstanding Supreme Court Quelimane Harrah’s. Co. v. Stew against concerning regula precedent Circuit Co., 26, Guaranty 19 77 art Title Cal.4th sup also Indian land transactions tion of (Cal. 709, 513, P.2d Cal.Rptr.2d future § to include the ports reading 1998) the first element of an (stating that Supreme Court The United States tense. with contractual intentional interference canons of con made clear that “the “a valid contract be relations action is law are root to Indian applicable struction party”). plaintiff tween and a third unique relationship between ed in the the Indians.” Onei States and United unambigu- To contradict this clear Nation, 470 County v. da Oneida 81, first reading majority ous 247, 1245, 226, 84 L.Ed.2d 105 S.Ct. U.S. Dictionary only ap- Act declares (1985). cannons of con One of those ambiguous. How- plies when statute relating to that federal statutes struction is ever, authority majority cites no liberally “construed Indian tribes must be there is none. argument, because Montana v. of the Indians.” favor Dictionary Act and Congress enacted the Indians, 759, U.S. Blackfeet act, it as its first U.S.C. installed (1985). 85 L.Ed.2d 753 105 S.Ct. meaning of the words of controlling the written, “Until previously court has This Congress. Nothing in any and all Acts of Indian repeals or amends the Congress controlling Code or the United States give ... them a ... statutes we must Dictionary Act’s appli- limits the precedent language’ and broad ‘sweep as[their] cation. light in of the intent of interpret them their ar- Understanding the weakness of that them.” A.K. Man Congress enacted upon seizes majority next gument, Band Mis Co. v. San Manuel agement argues Act and Dictionary language Indians, 785, F.2d 787 Cir. 789 sion § precludes the context of the 1986) Machinery Central Co. (quoting is “the Commission, the future tense. Context use of 448 U.S. Tax Arizona State surrounding Congress the Act of 166, 2592, text of 160, 65 L.Ed.2d 684 100 S.Ct. issue, texts of other (1980)). at or the § the fu- the word Reading 81 to include Acts.” Rowland v. tribes and congressional party, related some other which will 194, Id.; Colony, 506 Men’s U.S. encumber Indian lands. see also 25 California (1993). 716, 151.10, §§ 199, L.Ed.2d 656 C.F.R. 151.11. 113 S.Ct. Section 2701 et § However, provide 2710, § of 81 do not seq., applies the words which includes contracts, in finding approval gaming context. There is no different not con- majority opinion arguments in the tracts encumbering Indian lands. Addi- parties suggesting tionally, briefs of the these sections use a different defi- surrounding the statute “which is nition of the words of term “Indian Lands” than Instead, § held” a different context. does 81. Indian provide lands under these sec- majority suggests that 25 U.S.C. “all tions includes lands within the limits of (other 465, 2710, congression- any §§ and 2719 any Indian reservation and lands to acts) reject provide al the “context” to which title is by either held trust tense, § to include the future reading by any as United States ... or held Indian Dictionary Again, mandated Act. subject tribe or individual to restrictions majority Supreme cites no Court or the United States ... over which an precedent argu- circuit to buttress their governmental Indian tribe exercises pow- 2703(4) § ment that these sections were enacted to er.” 25 U.S.C. (emphasis add- ed). 2719(b)(1)(A) § change the context of 81. Section is lim- likewise contracts, gaming ited to requires majority pro- The sections cited Secretary to gaming determine whether a protections vide additional to the Indian establishment would inbe the best interest lands, provide sup- tribes and their but no of the Indian tribe and whether it would be port proposition Dictionary for the detrimental to the surrounding community. apply However, § Act should 81. 2719(b)(1)(A). § 25 U.S.C. Congress pass can more than one Act to applies assist Indian tribes. Section 81 majority The next argues Congress agreements all § contracts could have drafted 81 to include the tense, encumber Indian tribes which trust lands. future if that were its intent. How- 81, Secretary ever, § Under must deter- Dictionary provides Act that all (1) mine: whether the contract will encum- present tense words used in Acts of Con- presently acquired ber held or to be gress include the future tense. See 1 period years; § land for seven or more U.S.C. 1. presume Because we that Con- the contract improvi- gress whether is knowledgeable existing about law § dent and unconscionable. 25 U.S.C. it passes when new legislation, we must 465, 2710, None language sections presume that Congress was aware of the or 2719 even addresses contracts encum- Dictionary Act when it enacted 81. See lands, bering Indian much provides less Apex Miles v. Marine Corp., 498 U.S. suggesting (1990). context 81 can include S.Ct. L.Ed.2d 275 present Thus, tense. there is simply no reason for Con- gress to draft a statute with Section 465 authorizes the “to both present fact, and future tense. acquire lands, ... interest water drafting way illogical would be giv- rights, rights or surface to lands within or en that Dictionary the Act ad- existing without reservations ... for the dresses the future in “any tense Act of purposes providing land for Indians.” Congress.” § 1 U.S.C. 1. § Nothing U.S.C. 465. in that section remotely even addresses determining majority’s the The opinion implies also contracts, fairness of between statutory Indian the language in the Dictionary court lowed. The district refused allow Supreme Court hoary, because the Act is refusal, However in its Dictionary surreply. Act to the only applied noted, re- district court “The Court has “per- word meaning of the illustrate however, surreply filed NGV. The are not viewed Congress, Acts of son.” evi- Court finds that NGV has submitted so invalid until declared presumed concerning dence issues of fact. Because the Su- Simply because Supreme Court. bases its decision on an issue of yet this Court has not addressed preme Court law, unnecessary it finds it to address the application not affect the issue does surreply.” contained in the this case. contentions Act to the facts of Dictionary v. Guidiville Band Pomo Indians NGV on what it Lastly, majority relies Ltd., 1, n. 1 Gaming 2005 WL 5503031 at toward modern attitude terms a “more (N.D.Cal.2005). Given these circum- justify reading tribes” to stances, pick it court to is error for this However, job legislate not to § our is 81. it parol and choose what evidence will use is, job modern attitudes. Our to reflect reversing the district court’s decision on have they statutes as interpret instead to court not even an issue that the district did place, not Congress’s It is been written. Instead, address. we should remand this ours, attitudes whether modern to decide may to the district court so that it issue (as opin- repealed § 81 be dictate finding regarding make a factual whether does). Congress the time that ion Until of the contracts between the terms so, are the current does we bound ambiguous. are Tribe and NGV § language of 81. between the Tribe The contracts A. ap- § subject require are 81 and NGV Secretary the Interior. by the proval interpreting a contract under Califor approved, not law, Because the contracts were plain nia a court must first look to and unenforcea- the contracts were invalid language. meaning of the contract’s See cause of tortious interference §§ ble. NGV’s 1644. “When Cal. Civ.Code and must be dis- action therefore fails writing, reduced to the inten contract is missed. tion of the is to be ascertained alone, writing possible[.]” if Cal. from the

II. law holds 1639. California Civ.Code summary personally if the trial court that “even The Tribe and Harrah’s filed ambiguous, motions, lan- finds the document to be asserting that the judgment all credible preliminarily the contracts between should guage of consider the intent of the evidence to ascertain presently owned and NGV encumbered Waessil, 27 Cal. parties.” Appleton thereby requiring lands (Cal. App.4th Cal.Rptr.2d opposed NGV approval under cases, In such the district motion, language Ct.App.1994). citing also two-step process: in a Thereafter, requested engages court contracts. “First, provisionally receives the court surreply provide to file a permission (without actually admitting) all credible ev in support additional evidence court with concerning parties’ intentions idence that the contracts did not position of its i.e., ‘ambiguity,’ whether determine lands. Both Harrah’s encumber trust and, ‘reasonably susceptible’ alterna- opposed the motion If urged by party. interpretation to re- tively, requested they be able the court light of the extrinsic evidence if it were al- spond surreply, to NGVs 788 ‘reasonably language suscep hearing is before the district court in

decides which interpretation urged, the ex tible’ to the district court can all consider is then in admitted aid particularly trinsic evidence evidence. This is true under the contract.” step-interpreting law, the second California requires which a district Price, 1159, 4 Cal.App.4th 6 Cal. Winet v. court to first a finding make about wheth 554, (Cal.Ct.App.1992). Rptr.2d er the contract ambiguous is and allows parol if admission evidence opportunity had no The district court is, fact, Winet, ambiguous. contract See language of interpret these contracts. Cal.Rptr.2d at 557. If the contract is Instead, question of law it decided re- unambiguous, appellate in court should § garding 81. Because the district court terpret the contract based on language acknowledged that factual issues exist with alone. Cal. Civ.Code It is not interpretation, regard to the contracts’ appropriate appellate for courts to make a position is in a better district court determination in the first instance about “make these determinations in the first whether the contract ambiguous is and it Catrett, Corp. instance.” See Celotex is even less appropriate appellate 317, 327, 2548, 106 S.Ct. U.S. evidence, courts to determine what parol if (1986). L.Ed.2d 265 any, Therefore, to consider. I would re Notwithstanding that the district court mand to the district court for it to make a analysis never reached the set forth in determination the first instance as to Winet, majority finds that the lan- whether the contracts between the Tribe guage unambig- Lease is Tribe/NGY and, ambiguous, so, are if what However, so, doing majority uous. parol evidence to admit. This is consistent picks parol and chooses what evidence it process with the provided California will remanding consider rather than to the Winet, 557; law. See Cal.Rptr.2d at determine, may district court so that & E. Gas Co. v. G.W. Thomas Pacific instance, the first terms of whether the Co., Drayage etc. 69 Cal.2d 69 Cal. contract For ambiguous. example, are (Cal.1968) Rptr. 442 P.2d (1) majority parol uses evidence to ascer- (“The admissibility test of of extrinsic evi tain parties that neither of the ever con- explain dence to the meaning of a written templated that the Lease would extend to instrument is not it appears whether to the (the already owned trust land Medocino plain court to be unambiguous on its County property); state that face, but whether the offered evidence is “equally unambiguous facts as to that relevant prove meaning to which the property itself confirm that the Medocino language of the reasonably instrument County lands are not at all within the susceptible.”) purview of parties’ transaction.” The majority also cites to the Bureau of Indian B. finding

Affairs letters to buttress its re- garding of the Lease. The majority ignores also the rules of

I reject the idea that appellate courts contract interpretation in reaching its re- may rely upon parol evidence which was sult. plain Section 81’s language requires fully presented contract encumbering Indian lands for district court order to reverse period years the dis- of seven or more to get trict An appellate court. applica- approval. court’s 25 U.S.C. 1. There is no dis- tion of parol interpret evidence to contrac- pute that the Lease “encumbers” land tual terms is not a substitute for a full which the lease defines as “Trust Lands.” (“Encumber “Proper- that the use of the word means it clear § 84.002 25 C.F.R. See in Lands” is claim, lien, entry ty” or the definition of “Trust right of to attach “Property,” to limited to the defined term Pursuant property”). real liability to in is also included the Master Defi- Lease, long any as of which so terms of Thus, majority believes out- nitions List. to NGV remain obligations the Tribe’s sell, of, only that the term “Trust Lands” includes dispose cannot standing, transfer, specific acquired land to be for con- sublet, mortgage or lease, assign, title, majority of the casino. The re- its or struction any part all encumber Lands,” “Property” fact that the word upon as lies the “Trust in or to interest contracts, in of “Trust capitalized the definition without parties’ in the defined Lands,” ignores but the context and use of NGV. The consent prior written con- NGV, term “Trust Lands” within the agents, em- grants also Lease themselves. tracts contractors independent ployees, lands, Indian trust entry on right of should It is well settled that a contract ... access and unrestricted “complete meaning to interpreted give so as to installing and con- developing, purposes agree “Since an provisions. each of its Thus, must we structing the Structure.” whole, it is as interpreted ment is term the defined determine whether part of in the first instance that no sumed in the Lease encom- Lands” used “Trust Brinderson-Newberg superfluous.” it is ap- § 81’s lands such passes Indian Erectors, Inc., 971 Venture v. Joint Pacific apply. would requirement proval (9th Cir.1992) (quoting 278-79 F.2d (Second) List, of Contracts Restatement Master Definitions parties’ In the 203(a) (1979)). majority’s The § cmt. b the Lease and the applies to both which the defined contract, reading of the Lease renders defined other parties’ meaningless. The de term “Trust Lands” “Property held “Trust Lands” the term prop “Property” includes “real for the fined term in Trust by the United States con erty § which the Structure will be upon 81 to Applying the Tribe.” benefit of at the time by Developer, which definition, Indi- structed the Lease encumbers this to the United will be titled of “Trust of construction The Lease’s definition an lands. in trust for the benefit by States property all of the held Lands” includes already requires This term the benefit Tribe.” in trust for the United States Thus, the casino be held land Tribe, acquired exceptions. with no the Tribe. States for § the United majority is correct that even if the Lands” includes defined term “Trust held The presently to lands only applies by the States “Property held United trust, encumbers such land. the Lease If of the Tribe.” for the benefit Thus, by Trust approved Lease needed to be as de “Property” refers to definition Secretary of the Interior. 25 U.S.C. List, the 81(b). not, by the Master Definitions the Lease is fined Because it was exactly thing. the same mean two terms invalid. Thus, would be the term “Trust Lands” attempts to skirt 81’s majority The not include because would superfluous by suggesting requirement approval covered the defini land Lands” of “Trust the Lease’s definition “Property.” tion of be ac- only applies property which will be inter Additionally, contracts should majority asserts future. The quired Bro “internally consistent.” preted to be terms are de- sequence which beck, Corp., Harrison v. Telex Phleger & List makes in the Master Definitions fined (9th Cir.1979) operation facility or of the as contem- (applying 602 F.2d law). is un- plated When the contract the Transaction Documents. California gov- to express language the is ambiguous, internally It apply would be inconsistent to Falotti, F.3d Corp. v. ern. Oracle majority’s the definition of “Trust Lands” Cir.2003) (citing California provision. to this If the words “Trust law). only yet acquired Lands” refer to to be only majority the Master Def- The reads built, property on which the casino will be what the term initions List to determine paragraph superfluous. is The Tribe means, ignores Lands” and the “Trust realistically any could not make Lease, thereby of the whole plain language required representations or on warranties First, “internally making it inconsistent.” Thus, yet acquired. land had not at the majority overlooks the fact that the the time the their Tribe NGV entered into every definition in the Mas- first letter of contracts, section 14.1 of the Lease would Thus, capitalized. List is ter Definitions meaningless. have been “Property” capitalized the fact that is Applying statutory inter- basic rules of of “Trust Lands” has no the definition pretation, clearly contemplates the Lease significance. Neither the Lease nor the the definition of “Trust Lands” in- parties’ language other contract has indi- Tribe, any just cludes trust land of the not cating “Property,” the word the first property acquired for the Tribe Lands,” definition of word of the “Trust Thus, in the parties’ NGV future. previ- refers to the term as defined undisputedly subject ap- contracts were best, ously major- At the contracts. proval Secretary of the Interior ity’s reading of this language suggests § under 81. in the contracts. An ambiguity ambiguous contract interpreted cannot be without de- III. termining parties. intent If this case, declaratory The Tribe also brought is the the matter should be remanded judgment validity action to to the court for determine district determina- of its contracts with The tion. NGV. district (1) court subject found that it had matter Second, majority ignores the re- jurisdiction declaratory over the relief ac- Lease, mainder of the which makes clear (2) tion; applied § to-be-acquired to the that the term “Trust Lands” limited lands; because the property acquired future, to be in the approve of the Interior did not the con- triggers application and thus required tracts as under the con- For example, section 14.1 of the Lease tracts were invalid. appealed provides that represents Tribe decision. warrants: F. judgments There are no or majority filed As noted opinion, the suits, actions, or or proceedings pending, Tribe entered into contracts with Har- Lessee, knowledge threatened rah’s after entering into the contracts against affecting or the Lessee or the with NGV. con- Harrah’s/Tribe court, by any arbitrator, tracts, Trust Lands specifically indemnified agency, administrative or other against any Govern- Harrah’s lawsuit NGV. which, Authority mental adversely if de- appeal pending, While the was the Tribe termined, materially would and adverse- and Harrah’s terminated their contracts ly construction, affect the development, agreement, and entered into a settlement provisions other terms or to continue agreed wherein hereof. claims made against indemnify Harrah’s the termination upon Based

by NGV. foregoing upon Based an ad- settlement, asserts appeal NGV on contracts, question in the there is a clauses the de- argument, alleging ditional fact to whether the termination (no case or is moot claratory judgment obligations to ended the Tribe’s contracts exists) termi- of the controversy because language if indemnify Harrah’s. Even majority The of the contracts. nation Califor- applicable, in the contracts is not (1) between the contracts agrees, because that: provides nia law terminated; Harrah’s were Tribe and a claim as- compromise doubtful (2) between underlying contracts faith good maintained in con- serted and invalid be- were Tribe and Harrah’s a a consideration for stitutes sufficient Al- approved. they were never cause may ulti- though even promise, new into a settle- entered though the Tribe claimant could mately found that the be required which agreement, ment true wheth- prevailed. not have This is Harrah’s, indemnify to continue to or not ... er the claim be suit the settlement majority found Buckman, 150 Co. v. Cal. Union Collection lack of consider- void for agreement was (Cal.1907). 159, 708, 88 P. 710 majority. disagree with again ation. I par provides law further California whether the Tribe’s dispute parities The if may upheld contracts be tially illegal Harrah’s survived indemnify obligation part illegal is severable from portion contracts, and of the the termination Burckle, Mailand v. 20 legal. which is controversy a whether case therefore 1, 1142, 367, P.2d Cal.Rptr. 143 572 Cal.3d exist. Both or continues to existed (Cal.1978) (severing a contract void Develop- Agreement and Management Act). Cartwright The issue under the Harrah’s Agreement ment between is entire or whether “whether a contract indemnification contained an the Tribe regarded are to be stipulations its various clause. The clause states: of construction.” question severable is 117, P. 149 Cal.

Indemnity. permit- Sterling Gregory, extent v. To the fullest (Cal.1906). Thus, to determine law, indemnify shall the Tribe ted illegal of otherwise any provisions whether against Affiliates Developer and its vitality, a court have continued man- contracts relating development, to the claims subject- “the must examine of the Casino of operation or agement, according ... matter of the contract ... which by any person, Pac. & parties.” any intention has had business or whom the Tribe Wharf Dredging Am. association, Storage Co. Standard dealing prior relationship, (Cal.1920). Co., 21, 192 P. 184 Cal. This indemnification the date hereof. intent, determining parties’ In termination of survive the shall the circumstances consider “all court must period of three Agreement of the contract.” surrounding making years. P. at 306. Sterling, 85 addition, contracts contained both of the part: severability stating clause raised of fact have been issues Because the settlement to the effect of Severability. regard material with If con- validity of the and the hereof shall Tribe/Harrah’s provisions terms and to the district tracts, must remand unenforceable, “we such inval- invalid or held conduct, evi- necessary, further affect court to unenforceability shall not idity or to resolve dentiary proceedings those is Bank New York v.

sues.” Fremont Corp., 523 F.3d Gen. Cir.

2008).

COOS COUNTY BOARD OF COUNTY

COMMISSIONERS, Plaintiff-

Appellant, KEMPTHORNE,*

Dirk in his official

capacity Secretary Interior; as Service;

United States Fish & Wildlife Hall, capacity

H. Dale in his official Director, United States Fish and Services, Defendants-Appel

Wildlife

lees.

No. 06-35634.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted March 2008.

Filed June * Kempthorne Dirk prede- is substituted 43(c)(2). for his Interior. R.App. Fed. P. cessor, Norton, Gale A.

Case Details

Case Name: Guidiville Band of Pomo Indians v. NGV Gaming, Ltd.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 26, 2008

Citation: 531 F.3d 767

Docket Number: 05-17066, 05-17067

Court Abbreviation: 9th Cir.