GILA RIVER INDIAN COMMUNITY; STATE OF ARIZONA; SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY v. TOHONO O‘ODHAM NATION
No. 13-16517
United States Court of Appeals, Ninth Circuit
March 29, 2016
D.C. No. 2:11-cv-00296-DGC
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
STATE OF ARIZONA,
Plaintiff-Appellant,
and
GILA RIVER INDIAN COMMUNITY; SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY,
Plaintiffs,
v.
TOHONO O‘ODHAM NATION,
Defendant-Appellee.
No. 13-16519
D.C. No. 2:11-cv-00296-DGC
STATE OF ARIZONA; GILA RIVER INDIAN COMMUNITY,
Plaintiffs,
and
SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY,
Plaintiff-Appellant,
v.
TOHONO O‘ODHAM NATION,
Defendant-Appellee.
No. 13-16520
D.C. No. 2:11-cv-00296-DGC
OPINION
David G. Campbell, District Judge, Presiding
Argued and Submitted December 7, 2015—San Francisco, California
Filed March 29, 2016
Before: Diarmuid F. O‘Scannlain, Barry G. Silverman, and Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea
SUMMARY*
Indian Gaming Regulatory Act
Affirming the district court‘s judgment, the panel held that the Tohono O‘odham Nation‘s plan to build a casino and conduct Class III gaming on a certain parcel of land did not violate a gaming compact between the Nation and the State of Arizona.
The Compact expressly authorizes Class III gaming (table card games and slot machines) on the “Indian Lands” of the Nation. The Compact defines “Indian Lands” as lands defined in
although Class III gaming is generally barred on land taken into trust after the effective date of the Indian Gaming and Regulatory Act (“IGRA“), that bar does not apply to land taken into trust as part of a settlement of a land claim.
After the Compact was approved, the Nation purchased land in Glendale, Arizona, with settlement funds it had acquired under the Gila Bend Indian Reservation Lands Replacement Act (“LRA“) after reservation lands were destroyed in flooding. The United States took a portion of the Glendale-area land, known as “Parcel 2,” into trust for the Nation pursuant to the LRA.
Affirming the district court‘s summary judgment, the panel held that the land acquired and taken into trust pursuant to the LRA was land taken into trust as part of a settlement of a land claim under
COUNSEL
Pratik A. Shah (argued), Merrill C. Godfrey, Z.W. Julius Chen, and John B. Capehart, Akin Gump Strauss Hauer & Feld LLP, Washington, D.C., for Plaintiff-Appellant Gila River Indian Community.
Mary R. O‘Grady, Shane M. Ham, and Grace E. Rebling, Osborn Maledon, P.A., Phoenix, Arizona, for Plaintiff-Appellant Salt River Pima-Maricopa Indian Community.
Robert L. Ellman (argued), Solicitor General, Thomas C. Horne, Attorney General, and Michael Tryon, Assistant Attorney General, Arizona Attorney General‘s Office, Phoenix, Arizona, for Plaintiff-Appellant State of Arizona.
Seth P. Waxman (argued), Danielle Spinelli, Kelly P. Dunbar, Sonya L. Lebsack, and Adam Klein, Wilmer Cutler Pickering Hale & Dorr LLP, Washington, D.C.; Jonathan Jantzen, Attorney General, Laura Berglan, Deputy Attorney General, Tohono O‘odham Nation Attorney General‘s Office, Sells, Arizona, for Defendant-Appellee Tohono O‘odham Nation.
OPINION
BEA, Circuit Judge:
This appeal requires us to consider whether sophisticated, represented parties really meant what they wrote in a gaming compact that was duly executed after years of tedious negotiations. Like the district court, we hold the parties to their words, and affirm the district court‘s orders in favor of the Tohono O‘odham Nation.
I.
In 2002, the Tohono O‘odham Nation (“the Nation“) and the State of Arizona
expressly authorizes Class III gaming1 on the “Indian Lands” of the Nation. The Compact defines “Indian Lands” as “lands defined in
After the Compact was approved by the Secretary of the Interior and became effective in 2003, the Nation purchased an unincorporated parcel of land within the outer boundaries of Glendale, Arizona, pursuant to federal Gila Bend Indian Reservation Lands Replacement Act (“LRA“). Congress enacted the LRA in 1986 after continuous heavy flooding caused by a federally-constructed dam rendered over 9,000 acres of the Nation‘s reservation lands, which it had used principally for agriculture, economically useless. The LRA gave the Nation $30 million in “settlement funds” to purchase replacement reservation lands, provided the Nation “assign[ed] to the United States all right, title, and interest of
the Tribe in nine thousand eight hundred and eighty acres of land within the Gila Bend Indian Reservation” and “execute[d] a waiver and release” “of any and all claims of water rights or injuries to land or water rights . . . with respect to the lands of the Gila Bend Indian Reservation from time immemorial to the date of the execution by the Tribe of such a waiver.” In 1987, the Nation entered into a written agreement with the United States pursuant to the LRA in which the Nation waived and released its claims against the United States and assigned the United States “all right, title and interest” in 9,880 acres of its destroyed reservation lands in exchange for $30 million.
On July 7, 2014, the United States took a portion of the Glendale-area land, known as “Parcel 2,” into trust for the Nation pursuant to the LRA. We recently affirmed the legality of the Secretary‘s taking of Parcel 2 into trust for the benefit of the Nation under the LRA. See Nation v. City of Glendale, 804 F.3d 1292, 1301 (9th Cir. 2015). The Nation desires to build a casino and conduct Class III gaming on Parcel 2.
The State of Arizona, the Gila River Indian Community, and the Salt River Pima-Maricopa Indian community (the “Plaintiffs“) brought an action in federal district court in Arizona against the Nation, seeking to enjoin the Nation‘s plan to conduct Class III gaming on Parcel 2. To bring their action, the Plaintiffs invoked
effective date (October 17, 1988), would violate the Compact because the LRA was not a “settlement of a land claim” under
After a year of discovery, the parties filed cross-motions for summary judgment. The district court granted summary judgment in favor of the Nation because it concluded that land acquired and taken into trust pursuant to the LRA was land “taken into trust as part of . . . a settlement of a land claim” under
II
A district court‘s grant or denial of summary judgment is reviewed de novo. Arce v. Douglas, 793 F.3d 968, 975–76 (9th Cir. 2015). “The district court may grant summary judgment on ‘each claim or defense—or the part of each claim or defense—on which summary judgment is sought.’
pleadings, the discovery and disclosure materials on file, and any affidavits show that ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ Id.; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).” Nation v. City of Glendale, 804 F.3d 1292, 1297 (9th Cir. 2015).
This court reviews ”de novo a district court‘s dismissal for lack of subject matter jurisdiction.” Miller v. Wright, 705 F.3d 919, 923 (9th Cir. 2013). “Whether Congress has abrogated the sovereign immunity of Indian tribes by statute is a question of statutory interpretation and is reviewed de novo.” Krystal Energy Co. v. Navajo Nation, 357 F.3d 1055, 1056 (9th Cir. 2004), as amended on denial of reh‘g en banc (Apr. 6, 2004).
A district court‘s construction or interpretation of IGRA is question of law, and is reviewed de novo on appeal. See United States v. 103 Elec. Gambling Devices, 223 F.3d 1091, 1095 (9th Cir. 2000).
III
A. Interpretation of IGRA § 2719
Plaintiffs argue that the district court erroneously concluded that land acquired and taken into trust pursuant to the LRA qualifies as land “taken into trust as part of . . . a settlement of a land claim” under
taken into trust after
To determine if land taken into trust pursuant to the LRA qualifies as land “taken into trust as part of . . . a settlement of a land claim” under
Land claim means any claim by a tribe concerning the impairment of title or other real property interest or loss of possession that:
- Arises under the United States Constitution, Federal common law, Federal statute or treaty;
- Is in conflict with the right, or title or other real property interest claimed by an individual or entity (private, public, or governmental); and
- Either accrued on or before October 17, 1988, or involves lands held in trust or restricted fee for the tribe prior to October 17, 1988.
“We review an agency‘s interpretation of a statute it is charged with administering under the familiar two-step framework set forth in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).” Ctr. for Biological Diversity v. Salazar, 695 F.3d 893, 902 (9th Cir. 2012). We must first determine whether “Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842–43. “[I]f the statute is silent or ambiguous with respect to the specific issue,” however, “the question for the court is whether the agency‘s answer is based on a permissible construction of the statute.” Id. at 843. “If a statute is ambiguous, and if the implementing agency‘s construction is reasonable, Chevron requires a federal court to accept the agency‘s construction of the statute, even if the agency‘s reading differs from what the court believes is the best statutory interpretation.” Salazar, 695 F.3d at 902 (quoting Nat‘l Cable & Telecomm. Ass‘n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005)).
Thus, we must first determine whether “land claim,” as it is used in
clarity either.3 “When a statute does not define a term, we generally interpret that term by employing the ordinary, contemporary, and common meaning of the words that Congress used.” United States v. Gallegos, 613 F.3d 1211, 1214 (9th Cir. 2010) (
Legal Texts 101 (2012) (“Without some indication to the contrary, general words . . . are to be accorded their full and fair scope.“). Here, under the ordinary meaning of the words used in the statutory text, the Nation plainly had “land claims” for damage to its reservation lands.
In any case, were we to find the term “land claim” to be ambiguous, and proceed under Chevron to apply the DOI‘s definition of the term, then we would find that the Nation also had a claim concerning the impairment of title or other real property interest or loss of possession of its reservation land.5 The flooding of the Nation‘s reservation due to the federal government‘s construction of the Painted Rock dam gave rise for a trespass claim severe enough to constitute an unlawful taking without just compensation. Arkansas Game & Fish Comm‘n v. United States, 133 S. Ct. 511, 519 (2012) (“[G]overnment-induced flooding can constitute a taking of property.“). The Nation had a claim that the continual flooding of its lands due to the Painted Rock Dam exceeded the scope of the government‘s flowage easement, which allowed the government “occasionally” to “overflow, flood, and submerge” the Nation‘s lands, because the flooding rendered “all of the arable land of the reservation—5,962 acres—to be unsuitable for agriculture.” The remaining 4,000 acres of the Nation‘s reservation were of “little or no economic value” due to “repeated flooding, silt deposition and salt cedar infestation.” This taking by definition constituted a claim for the interference to the Nation‘s title to and possession of its land, and the flooding interfered with “other real property interest[s],” such as the Nation‘s use of the land.
Furthermore, the district court did not err in determining that the LRA was a “settlement” of the Nation‘s land claims. Congress enacted the LRA to “facilitate replacement of reservation lands with lands suitable for sustained economic use which is not principally farming. . . .” The LRA required the Nation to assign to the federal government “all right, title and interest of the Tribe” in 9,880 acres of land the government flooded in the Gila Bend Indian Reservation, and to execute a
Additionally, the LRA expressly provides that “[a]ny land which the Secretary holds in trust [under the Act] shall be deemed to be a Federal Indian Reservation for all purposes.” In sum, we hold that Parcel 2, which the United States is now holding in trust for the benefit of the Nation, meets the requirements of
B. Judicial Estoppel and Waiver
Plaintiffs argue that the Nation is judicially estopped from asserting that it has a right to conduct Class III gaming on Parcel 2 under IGRA because of a position the Nation took in a supplemental brief submitted to an arbitrator during an unsuccessful arbitration proceeding relating to negotiations of a 1993 Gaming Compact between the Nation and Arizona. Plaintiffs also claim that the Nation waived its right to conduct Class III gaming on Parcel 2 under IGRA because the Nation was present when a “handout” was distributed at a 1993 meeting between Arizona legislative staff and tribal
representatives; the handout stated the “settlement of a land claim” exception to IGRA‘s prohibition of gaming on tribal lands taken into trust after October 17, 1988 would not affect Arizona. We address each argument below, and conclude that the district court correctly rejected both of these arguments.
“[J]udicial estoppel ‘is an equitable doctrine invoked by a court at its discretion‘” “‘to protect the integrity of the judicial process.‘” New Hampshire v. Maine, 532 U.S. 742, 749–50 (2001) (internal quotation marks omitted). Thus, we review the district court‘s decision whether to invoke judicial estoppel for an abuse of discretion. See Hendricks & Lewis PLLC v. Clinton, 766 F.3d 991, 995 (9th Cir. 2014). We conclude that the district court did not abuse its discretion in holding that the doctrine of judicial estoppel does not bar the Nation from asserting that it has a right to conduct Class III gaming on Parcel 2. Here‘s why.
Federal courts consider the following factors described by the Supreme Court in New Hampshire when deciding whether to invoke the doctrine of judicial estoppel:
First, a party‘s later position must be clearly inconsistent with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party‘s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled. Third, courts ask whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose
unfair detriment on the opposing party if not estopped.
Id. at 1001 (quoting New Hampshire, 532 U.S. at 750–51).
Prior to executing the 1993 Gaming Compact, the Nation and Arizona were parties to a nonbinding arbitration proceeding under IGRA, where the Nation and Arizona each submitted a “last best offer” compact to an arbitrator, who was to choose one of the two proposals without amendment. In response to a provision in Arizona‘s proposed compact which would have barred Class III gaming on lands
would result in the Nation forfeiting the rights provided to tribes in IGRA to request that in certain circumstances after-acquired trust land be available for class III gaming activities. The existing federal law requires the Governor‘s concurrence. This is adequate protection to the State and local interests. The State simply seeks an ancillary benefit in this provision.
Here, the district court correctly recognized and applied the three New Hampshire factors, and thus did not abuse its discretion in deciding not to apply the doctrine of judicial estoppel. In regard to the first New Hampshire factor, these sentences in the Nation‘s 1992 brief are not “clearly inconsistent” with Nation‘s argument in this case that land it acquired in trust under the LRA qualifies as a “settlement of a land claim” pursuant to
would not ever pursue gaming under
Additionally, the Nation did not waive its right to conduct Class III gaming on its Glendale-area property under IGRA simply because the Nation was present when a handout was distributed at a 1993 meeting between Arizona legislative staff and representatives of various Arizona Indian tribes.
“A waiver is an intentional relinquishment or abandonment of a known right or privilege. It can preclude the assertion of legal rights. An implied waiver of rights will
be found where there is ‘clear, decisive and unequivocal’ conduct which indicates a purpose to waive the legal rights involved.” United States v. Amwest Sur. Ins. Co., 54 F.3d 601, 602–03 (9th Cir. 1995) (internal citations and quotation marks omitted).
Here, during negotiations for the 1993 Compact, tribal representatives of various Arizona Indian tribes, including the Nation, met with Arizona legislative staffers. At the meeting, a handout was distributed which read:
Another exception to the prohibition of gaming on after acquired lands is when the lands are taken into trust as part of a settlement of land claim. This will not effect [sic] Arizona because aboriginal land claims in Arizona have already been
settled pursuant to the Indian Claims Commission Act of 1946.
There is nothing in the record that shows that representatives of the Nation either drafted or distributed the handout or were primary speakers at this meeting. Plaintiffs instead support their waiver claim by arguing that the Nation was present at the meeting and did not voice disagreement with the handout. Because mere silence is not “clear, decisive and unequivocal conduct,” Amwest Sur. Ins. Co., 54 F.3d at 603 (quoting Groves v. Prickett, 420 F.2d 1119, 1125 (9th Cir. 1970)), we agree with the district court that we “cannot conclude that the Nation‘s silence during the 1993 meeting constituted a knowing waiver, in perpetuity, of its right to claim the exception in
But even were we to assume there was a duty to object to the legislative staffers’ view that no Arizona land could be affected by the “settlement of a land claim” exception, and that view was voiced during the negotiations for the 1993 compact, that view did not make it into the Compact as written and executed. Hence, it is without contractual force because of the integration clause of the Compact, which provides that the Compact “contains the entire agreement of the parties with respect to matters covered by this Compact and no other statement, agreement, or promise made by any party, officer, or agent of any party shall be valid or binding.”
IV
The Plaintiffs argue that the language of the Compact implicitly prohibits Class III gaming on the Glendale-area property purchased by the Nation and held in trust by the government, and Plaintiffs seek to introduce extrinsic evidence to prove this claim. The Nation responds that the district court correctly granted it summary judgment on this issue, because “IGRA authorizes gaming on the Settlement Property, and the Compact‘s plain terms authorize the Nation to game where IGRA permits.”
The Compact contains a choice-of-law clause, but it does not clearly identify what law applies to interpret the terms of the Compact. The clause provides: “This Compact shall be governed by and construed in accordance with the applicable laws of the United States, and the Nation and the State.” To decide whether Plaintiffs’ proffered extrinsic evidence was admissible, the district court first engaged in a choice-of-law analysis, pursuant to the Restatement (Second) of Conflicts of Law, to determine what body of law governed the interpretation of the Compact: federal common law or
Arizona state law.6 As discussed below, although the district court erred in concluding that Arizona state law governs the interpretation of the Compact, this error is harmless because the same outcome results under both federal common law and Arizona contract law. This is because the Plaintiffs rely on extrinsic evidence to vary or contradict the written terms of the Compact, which is not permissible under either federal common law or Arizona contract law.
We recently reaffirmed that “[g]eneral principles of federal contract law govern . . . Compacts[] which were entered pursuant to IGRA.” Pauma Band of Luiseno Mission Indians v. California, 813 F.3d 1155, 2015 WL 9245245, at *4 (9th Cir. Dec. 18, 2015) (quoting Cachil Dehe Band of Wintun Indians of the Colusa Indian Community v. California, 618 F.3d 1073 (9th Cir. 2010)). Federal common law follows the traditional approach for the parol evidence rule: “[A]
Arizona‘s parol evidence rule is more liberal: “[T]he judge first considers the offered evidence, and if he or she finds that the contract language is ‘reasonably susceptible’ to the interpretation asserted by the proponent, the evidence is admissible to determine the meaning intended by the parties.” Taylor v. State Farm Mut. Auto. Ins. Co., 854 P.2d 1134, 1140 (Ariz. 1993). In applying Arizona‘s parol evidence rule, however, the Ninth Circuit has noted that “the Taylor court
specifically limited its liberal use of parol evidence to contract interpretation and rejected its use to vary or contradict a final agreement.” Velarde v. PACE Membership Warehouse, Inc., 105 F.3d 1313, 1317–18 (9th Cir. 1997) (emphasis added) (citing Taylor, 854 P.2d at 1139–40).
Here, to begin, the Compact that the parties executed contains an integration clause which provides that the “Compact contains the entire agreement of the parties with respect to the matters covered by this Compact and no other statement, agreement, or promise made by any party, officer, or agent of any party shall be valid or binding.” While not dispositive, this broad integration clause that was agreed to by sophisticated, represented parties after years of tedious negotiations strongly counsels in favor of rejecting Plaintiffs’ proffered extrinsic evidence to interpret the terms of the duly-executed written agreement. Section 3(a) of the Compact, entitled “Authorized Class III Gaming Activities,” explicitly authorizes the Nation to conduct Class III gaming, subject to the terms and conditions of the Compact. Plaintiffs seek to introduce extrinsic evidence to prove that during negotiations of the Compact, the parties understood that the Compact would bar the Nation from opening a casino in the Phoenix metropolitan area. But § 3(j) of the Compact, entitled “Location of Gaming Facility,” contains no such limitation, and provides that “[a]ll Gaming Facilities shall be located on the Indian Lands of the Tribe,” and “Gaming Activity on lands acquired after the enactment of the [IGRA] on October 17, 1988 shall be authorized only in accordance with
If the Tribe is the Tohono O‘odham Nation, and if the Tribe operates four (4) Gaming Facilities, then at least one of the four (4) Gaming Facilities shall: a) be at least 50 miles from the existing Gaming Facilities of the Tribe in the Tucson metropolitan area as of the Effective Date.
This language clearly does not prohibit the Nation from gaming in the Phoenix metropolitan area on its Indian Lands.7
In short, the duly-executed Compact negotiated at length by sophisticated parties expressly authorizes the Nation to conduct gaming on its “Indian Lands,” subject to the requirements of
V
Relatedly, Plaintiffs also argue that the Nation‘s plan to conduct Class III gaming on Parcel 2 violates the implied covenant of good faith and fair dealing in the Compact.
“It is true that there is an implied covenant in every contract that each party will do nothing to deprive the other of the benefits arising from the contract.” Sessions, Inc. v. Morton, 491 F.2d 854, 857 (9th Cir. 1974). “This ‘covenant of fair dealing’ imposes the duty on each party to do everything that the contract presupposes will be done in order to accomplish the purpose of the contract. However, this implied obligation must arise from the language used or it must be indispensable to effectuate the intention of the parties.” Id. (internal quotation marks omitted).
Here, the terms of the Compact do not prohibit the Nation from building a Class III casino in the Phoenix area; to the contrary, the Compact expressly authorizes Class III gaming on “Indian lands,” subject to the requirements of
VI
Plaintiffs’ last argument is that the district court erred in ruling that tribal sovereign immunity bars Plaintiffs’ claims against the Nation for promissory estoppel, fraudulent inducement, and material misrepresentation. This argument is without merit.
“As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.” Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998). Here, the Compact expressly states that it does not waive the Nation‘s tribal sovereign immunity. Plaintiffs claim instead that
The district court correctly found that Plaintiffs’ claims for fraud in the inducement, material misrepresentation,
theory of contract liability.” Double AA Builders v. Grand State Constr., 114 P.3d 835, 843 (Ariz. Ct. App. 2005). And fraudulent inducement and material misrepresentation are tort claims, not breach of contract claims. See Morris v. Achen Constr. Co., 747 P.2d 1211, 1213 (Ariz. 1987) (“The duty not to commit fraud is obviously not created by a contractual relationship and exists . . . even when there is no contractual relationship between the parties at all.“). As such, these claims do not fall within IGRA‘s limited abrogation of tribal sovereign immunity.
CONCLUSION
For the foregoing reasons, the orders of the district court in favor of the Nation are AFFIRMED.
Notes
Furthermore, as the Supreme Court also noted in Bay Mills, “it is fundamentally Congress‘s job, not [the federal courts], to determine whether or how to limit tribal immunity. The special brand of sovereignty the tribes retain—both its nature and its extent—rests in the hands of Congress.” Bay Mills Indian Cmty., 134 S. Ct. at 2037.