State of Arizona v. Tohono O'Odham Nation

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STATE OF ARIZONA; SALT RIVER No. 13-16517

PIMA-MARICOPA INDIAN

COMMUNITY, D.C. No.

Plaintiffs, 2:11-cv-00296-

DGC

and

GILA RIVER INDIAN COMMUNITY,

Plaintiff-Appellant,

v.

TOHONO O’ODHAM NATION,

Defendant-Appellee.

2 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION

STATE OF ARIZONA, No. 13-16519

Plaintiff-Appellant,

D.C. No.

and 2:11-cv-00296-

DGC

GILA RIVER INDIAN COMMUNITY;

SALT RIVER PIMA-MARICOPA

INDIAN COMMUNITY,

Plaintiffs,

v.

TOHONO O’ODHAM NATION,

Defendant-Appellee.

STATE OF ARIZONA; GILA RIVER No. 13-16520

INDIAN COMMUNITY,

Plaintiffs, D.C. No.

2:11-cv-00296-

and DGC

SALT RIVER PIMA-MARICOPA

INDIAN COMMUNITY, OPINION

Plaintiff-Appellant,

v.

TOHONO O’ODHAM NATION,

Defendant-Appellee.

GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION 3

Appeal from the United States District Court

for the District of Arizona

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 25 U.S.C. § 2703(4)(A) and (B) and subject to the

provisions of 25 U.S.C. § 2719. Section 2719 provides that

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION

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 IGRA § 2719, and thus IGRA did not bar

the Nation from gaming on Parcel 2. The panel also affirmed

the district court’s summary judgment in favor of the Nation

on breach of Compact claims, because the Compact

specifically authorizes Class III gaming on Indian lands that

qualify for gaming under IGRA § 2719. In addition, the

panel affirmed the district court’s ruling that tribal sovereign

immunity barred non-Compact-based claims for promissory

estoppel, fraud in the inducement, and material

misrepresentation.

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.

GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION 5

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 executed a gaming compact (“the

Compact”) pursuant to the federal Indian Gaming Regulatory

Act (“IGRA”), 25 U.S.C. §§ 2701–2721. The Compact

6 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION

expressly authorizes Class III gaming1 on the “Indian Lands”

of the Nation. The Compact defines “Indian Lands” as “lands

defined in 25 U.S.C. § 2703(4)(A) and (B),2 subject to the

provisions of 25 U.S.C. § 2719.” In turn, § 2719 of IGRA

provides that although Class III gaming is generally barred on

land taken into trust after IGRA’s effective date (October 17,

1988), that bar does not apply to land “taken into trust as part

of . . . a settlement of a land claim.” 25 U.S.C.

§ 2719(b)(1)(B). Additionally, the Compact contains an

integration clause, 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.”

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

1

Class III gaming includes table card games, such as blackjack, and slot

machines. See 25 U.S.C. § 2703(7)–(8).

2

Section 2703(4) defines “Indian lands” as “all lands within the limits

of any Indian reservation; and any lands title to which is . . . held in trust

by the United States for the benefit of any Indian tribe.” 25 U.S.C.

§ 2703(4).

GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION 7

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 § 2710(d)(7)(A)(ii) of IGRA,

which grants the United States district courts jurisdiction over

“any cause of action initiated by a State or Indian tribe to

enjoin a [C]lass III gaming activity located on Indian lands

and conducted in violation of any Tribal-State compact.”

25 U.S.C. § 2710(d)(7)(A)(ii). Plaintiffs alleged that Class III

gaming on Parcel 2, since it was acquired after IGRA’s

8 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION

effective date (October 17, 1988), would violate the Compact

because the LRA was not a “settlement of a land claim”

under IGRA § 2719, and because the Compact implicitly bars

the Nation from gaming in the Phoenix area. Plaintiffs also

alleged other non-Compact-based claims, including

promissory estoppel, fraud in the inducement, and material

misrepresentation.

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 IGRA § 2719(b)(1)(B)(1), and thus IGRA did

not bar the Nation from gaming on Parcel 2. The court also

granted summary judgment in favor of the Nation on

Plaintiffs’ breach of Compact claims, because the Compact

specifically authorizes Class III gaming on Indian lands that

qualify for gaming under IGRA § 2719. The court also ruled

that the doctrine of tribal sovereign immunity barred the

Plaintiffs’ non-Compact-based claims for promissory

estoppel, fraud in the inducement, and material

misrepresentation, and thus dismissed these claims for lack of

subject matter jurisdiction. Plaintiffs appeal the district

court’s rulings in favor of the Nation.

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.’

Fed. R. Civ. P. 56(a). Summary judgment is proper where the

GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION 9

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 § 2719(b)(1)(B)(i) of

IGRA. If 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,” then it is exempt from IGRA’s

prohibition of Class III gaming on Indian lands acquired and

10 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION

taken into trust after October 17, 1988. 25 U.S.C.

§ 2719(b)(1)(B)(i).

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 § 2719(b)(1)(B)(i) of IGRA, we must

first discern the meaning of the term “land claim.” Plaintiffs

argue that a “land claim” “applies to claims to title or

possession of land, not to injuries to land,” and base their

argument on a Department of the Interior (“DOI”) regulation

that defines a “land claim” as follows:

Land claim means any claim by a tribe

concerning the impairment of title or other

real property interest or loss of possession

that:

(1) Arises under the United States

Constitution, Federal common law,

Federal statute or treaty;

(2) Is in conflict with the right, or title or

other real property interest claimed by an

individual or entity (private, public, or

governmental); and

(3) 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.

25 C.F.R. § 292.2.

GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION 11

“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, 104 S.Ct. 2778, 81 L.Ed.2d

694 (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 § 2719(b)(1)(B)(i), is ambiguous. “A statute is

ambiguous if it is susceptible to more than one reasonable

interpretation.” Alaska Wilderness League v. EPA, 727 F.3d

934, 938 (9th Cir. 2013). The starting point is the statutory

text. Chevron, 467 U.S. at 842–43. “Land claim” is not

defined in IGRA, and is not used elsewhere in the statute.

See 25 U.S.C. § 2703 (definitions section). The statutory

context and surrounding language do not produce much

12 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION

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) (quoting United States v. Iverson,

162 F.3d 1015, 1022 (9th Cir. 1998)). Here, the language

used has a broad, general meaning. See Black’s Law

Dictionary (10th ed. 2014) (defining “claim” as “[t]he

assertion of an existing right; any right to payment or to an

equitable remedy, even if contingent or provisional . . . [a]

demand for money, property, or a legal remedy to which one

asserts a right”). Thus, a “land claim” can be a claim for

impairment to title of land, or as a claim for damage to land.

But a word or phrase is not ambiguous just because it has a

broad general meaning under the generalia verba sunt

generaliter intelligenda4 canon of statutory construction. See

Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (“As

we have said before, the fact that a statute can be applied in

situations not expressly anticipated by Congress does not

demonstrate ambiguity. It demonstrates breadth.” (internal

quotation marks omitted)). We do not find “land claim” to be

ambiguous as used in § 2719(b)(1)(B)(i). As noted above,

“claim” is a broad and general word, and therefore a claim for

impairment to title of land, a claim for dispossession of land,

and a claim for damage to land would all be encompassed by

it. See Scalia & Garner, Reading Law: The Interpretation of

3

The language of the full exception reads: “Subsection (a) of this

section will not apply when lands are taken into trust as part of: (i) a

settlement of a land claim, (ii) the initial reservation of an Indian tribe

acknowledged by the Secretary under the Federal acknowledgment

process, or (iii) the restoration of lands for an Indian tribe that is restored

to Federal recognition.” 25 U.S.C. § 2719(b)(1)(B).

4

“General words are to be understood in a general sense.”

GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION 13

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.

5

See 25 C.F.R. § 292.2.

14 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION

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 “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 exchange for $30 million in “settlement funds”

that the Nation could use to purchase new tribal lands.

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 § 2719(b)(1)(B)(i) of IGRA.

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

GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION 15

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

16 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION

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 acquired

in trust after IGRA’s effective date, the Nation submitted a

supplemental brief which explained that Arizona’s provision:

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 § 2719(b)(1)(B)(i) of IGRA. The

passage quoted above simply does not state that the Nation

GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION 17

would not ever pursue gaming under § 2719(b)(1)(B)(i) of

IGRA in the future. The passage states that acceptance of

Arizona’s provision would result in “after-acquired trust

land” not being available for Class III gaming in undefined

“certain circumstances.” Thus, purchase of land after 1988

would be one “certain circumstance.” But acquisition of land

as “part of . . . a settlement of a land claim” was not

mentioned as forfeited from use for Class III gaming. The

second New Hampshire factor, whether the Nation succeeded

in persuading the arbitrator to accept its argument, also

weighs in favor of the Nation. Although the arbitrator

ultimately selected the Nation’s compact, the arbitrator

expressed no view on whether and how the § 2719 IGRA

after-acquired land exceptions would apply. In any case,

Arizona refused to consent to the arbitrator’s selection, and

the arbitration concluded without the Nation obtaining any

relief, as the parties then returned to negotiations. The third

New Hampshire factor, whether the Nation’s statements in

the arbitration created an “unfair advantage or impose[d] an

unfair detriment on [the Plaintiffs],” favors the Nation as

well. Since the arbitration failed to produce a binding

compact, the Secretary of the Interior sent the Nation and

Arizona back to negotiations, where Arizona was free to

pursue any compact terms it desired.

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

18 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION

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 § 2719(b)(1)(B)(i).”

GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION 19

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

20 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION

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, — F.3d —, No. 14-56104, 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] contract[] must be discerned within its four

corners, extrinsic evidence being relevant only to resolve

ambiguity in the [contract].” United States v. Asarco Inc.,

430 F.3d 972, 980 (9th Cir. 2005).

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

6

The district court noted that “[a]lthough the governing law provision

of the Compact also mentions the Nation’s law, the Nation has no

developed law on the parol evidence rule.”

GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION 21

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

25 U.S.C. § 2719.” The only other language in the Compact

which could be read to limit the location of the Nation’s

gaming facilities is § 3(c)(3), which provides:

22 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION

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 IGRA § 2719. This language is

unambiguous and not reasonably susceptible to Plaintiffs’

interpretation that the Compact implicitly bars the Nation

from gaming in the Phoenix metropolitan area. The

Plaintiffs’ extrinsic evidence to the contrary attempts to vary

or contradict the terms of a final agreement, and therefore

must be rejected. Since we hold that Parcel 2 complies with

the requirements of IGRA § 2719, and the Compact expressly

allows the Nation to conduct Class III gaming there, the

district court correctly entered summary judgment in favor of

the Nation on Plaintiffs’ breach of Compact claim.

7

Application of the interpretive tool expressio unius est exclusio alterius

(“the expression of one thing is the exclusion of the other”) also supports

this reading of the Compact. The language described above is the only

express limitation in the executed Compact on the geographic location of

the Nation’s gaming facilities.

GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION 23

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 25 U.S.C.

§ 2719(b)(1)(B)(i). Thus, since Parcel 2 in Glendale is now

held in trust as part of the Nation’s “Indian Lands,” see

Nation, 804 F.3d at 1301, and Parcel 2 meets the

requirements of IGRA, the Compact authorizes the Nation to

conduct gaming there. Based on the terms of the Compact,

it is not reasonable for Plaintiffs to expect that the Compact

prohibits the Nation from the conduct of gaming on Parcel 2.

The Nation’s choice to conduct Class III gaming in

accordance with the express terms of the Compact does not

deviate from the agreed common purpose of the Compact,

and therefore does not breach the implied covenant of good

faith and fair dealing.

24 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION

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

§ 2710(d)(7)(A)(ii) of IGRA abrogates the Nation’s tribal

sovereign immunity for their non-Compact claims. Not so.

That section provides that “[t]he United States district courts

shall have jurisdiction over . . . any cause of action initiated

by a State or Indian tribe to enjoin a class III gaming activity

located on Indian lands and conducted in violation of any

Tribal-State compact . . . .” 25 U.S.C. § 2710(d)(7)(A)(ii)

(emphasis added). Congress thus abrogated the Nation’s

tribal sovereign immunity for claims alleging only violations

of the Compact. See Rincon Band of Luiseno Mission Indians

v. Schwarzenegger, 602 F.3d 1019, 1028 n.9 (9th Cir. 2010)

(recognizing “the canon of construction obligating [the court]

to construe a statute abrogating tribal rights narrowly and

most favorably towards tribal interests”).

The district court correctly found that Plaintiffs’ claims

for fraud in the inducement, material misrepresentation, and

promissory estoppel do not constitute claims for a violation

of the Compact. “A promissory estoppel claim is not the

same as a contract claim. Promissory estoppel . . . is not a

GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION 25

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.8 25 U.S.C. § 2710(d)(7)(A)(ii).

Therefore, the district court correctly concluded that it lacked

subject matter jurisdiction over Plaintiffs’ non-Compact

claims.

8

Plaintiffs cite a footnote in the U.S. Supreme Court’s recent Bay Mills

decision for the proposition that the doctrine of tribal sovereign immunity

should not bar tort claims against an Indian Tribe at all. But in the cited

footnote, the Court was discussing the principle of stare decisis, and

expressly reserved decision on whether a case involving an unwitting “tort

victim” “would present a ‘special justification’ for abandoning precedent,”

because that case was “not before [the Court].” Michigan v. Bay Mills

Indian Cmty., 134 S. Ct. 2024, 2036 n.8 (2014) (quoting Arizona v.

Rumsey, 467 U.S. 203, 212 (1984)). We have held that tribal sovereign

immunity bars tort claims against an Indian tribe, and that remains good

law. See Cook v. AVI Casino Enters., Inc., 548 F.3d 718, 725 (9th Cir.

2008) (affirming dismissal of plaintiff’s negligence claims against the Fort

Mojave Indian Tribe under doctrine of tribal sovereign immunity, where

the plaintiff was seriously injured by an intoxicated driver who had been

drinking at a casino operated by the Tribe).

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.

26 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION

CONCLUSION

For the foregoing reasons, the orders of the district court

in favor of the Nation are AFFIRMED.