Commercial Litigation and Arbitration

It Turns Out That “Is” Actually Means “Is,” At Least Sometimes

From Judge Milton Shadur’s opinion for the Ninth Circuit in Guidiville Band of Pomo Indians v. NGV Gaming, Ltd., 531 F.3d 767; 2008 U.S. App. LEXIS 13474 (9th Cir. 2008):

This appeal presents the single, seemingly straightforward question whether the word "is" really means "is," at least as that word is employed in 25 U.S.C. § 81. At the core of the present dispute, that statute requires the Secretary of the Department of the Interior ("Secretary") to approve any "contract with an Indian tribe that encumbers Indian lands for a period of 7 or more years" before such a contract can be considered valid. Section 81(a) defines the term "Indian lands" in part as "lands the title to which is held by the United States in trust for an Indian tribe" (emphasis added).

Appellant NGV Gaming Ltd. ("NGV") asks us to read Section 81 literally — as pertaining solely to contracts that implicate lands already held in trust by the federal government. Appellees Harrah's Operating Company ("Harrah's") and Guidiville Band of Pomo Indians ("the Tribe"), on the other hand, urge a nonliteral reading of the statute — one that would treat Section 81 as also covering contracts in which the parties reach agreement, not with respect to already-held lands, but to acquire lands in the future that might eventually be held in trust. Under the latter interpretation the contract at issue in this appeal would be invalid, lacking as it does the Secretary's approval, and the district court's decision to dismiss NGV's suit against Harrah's for tortious interference with that contract would have to be affirmed. But under the first — and literal — reading, the district court's decision would be in error, and the state law action could proceed.

Motivated largely by the plain meaning of Section 81 — but after also taking into account related statutes, relevant legislative history and the language of the contract itself — we conclude that the word "is" means just that (in the most basic, present-tense sense of the word) and that Section 81 therefore applies only to contracts that affect lands already held in trust by the United States. We therefore reverse the district court and remand for further proceedings.

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