The Ninth Circuit Court of Appeals today released an opinion in GUIDIVILLE BAND v. NGV GAMING LIT, No. 05-17066, a federal appeal. The panel consisted of Stephen S. Trott and N. Randy Smith, Circuit Judges, and Milton I. Shadur, Senior District Judge.
SHADUR, Senior District Judge:
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. Â§ 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. . .
N.R. SMITH, Circuit Judge, dissenting: I respectfully dissent for the following reasons. First, the majority rejects the clear and unambiguous will of Congress in its application of 25 U.S.C. Â§ 81. Second, because of its error in the application of 25 U.S.C. Â§ 81, the majority is thereafter forced to reverse the district court by (1) interpreting contracts that the district court did not review; (2) making its own determination that the contracts were unambiguous; (3) using parol evidence to interpret the contract even though it finds that the contracts were unambiguous; and (4) picking and choosing which parol evidence on which to rely, even though the district court had not addressed the issues of whether to admit parol evidence and, if so, what evidence to admit. I would instead affirm the district court’s summary judgment decision dismissing NGV’s tortious interference complaint against Harrah’s and dismiss the appeal for declaratory relief filed by the Tribe as moot. I. “The doctrine that the federal government stands in a fiduciary relationship to Native Americans has been a part of our common law since the early days of the Republic.” Eric v. Sec’y of HUD, 464 F. Supp. 44, 46 (D. Alaska 1978) (citing Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L.Ed. 25 (1831)). “Over the years courts at all levels have sustained the doctrine that in its relations with Native peoples the government owes a special duty analogous to those of a trustee.” Id. (citing Heckman v. United States, 224 U.S. 413 (1912); Seminole Nation v. United States, 316 U.S. 286 (1942); Redfox v. Redfox, 564 F.2d 361, 365 (9th Cir. 1977); Manchester Band of Pomo Indians, Inc. v. United States, 363 F. Supp. 1238 . . .