                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                                    PUBLISH
                                                                         June 22, 2005
                   UNITED STATES COURT OF APPEALS
                                                                      PATRICK FISHER
                                                                              Clerk
                               TENTH CIRCUIT



 FIRST AMERICAN KICKAPOO
 OPERATIONS, L.L.C., a Nevada
 Limited Liability Company,

             Plaintiff-Appellant,
       v.                                               No. 03-6283
 MULTIMEDIA GAMES, INC.,

             Defendant-Appellee.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE WESTERN DISTRICT OF OKLAHOMA
                    (D.C. NO. 01-CIV-1395-F)


Harvey D. Ellis, Jr. (Jimmy K. Goodman and David V. Stewart with him on the
brief), Crowe & Dunlevy, Oklahoma City, Oklahoma, for Plaintiff-Appellant.

John F. Heil, III (T. Lane Wilson with him on the brief), Hall, Estill, Hardwick,
Gable, Golden & Nelson, P.C., Tulsa, Oklahoma, for Defendant-Appellee.


Before O’BRIEN, PORFILIO, and McCONNELL, Circuit Judges.


McCONNELL, Circuit Judge.
      Plaintiff First American Kickapoo Operations appeals the district court’s

grant of summary judgment on its claim for tortious interference with contract.

We AFFIRM.

                               I. Factual Background

      The Indian Gaming Regulatory Act (“IGRA”) establishes a statutory basis

for the operation and regulation of gaming by Indian tribes to “promot[e] tribal

economic development, self-sufficiency, and strong tribal governments,” while

simultaneously “shield[ing tribes] from organized crime and other corrupting

influences [and] ensur[ing] that . . . Indian tribe[s are] the primary beneficiar[ies]

of . . . gaming operations.” 25 U.S.C. § 2702. The IGRA effects these goals in

part by providing for federal oversight of contracts between tribes and non-tribal

entities for the management of tribal gaming operations. Tribes may enter into

contracts for the management of these gaming operations only with the approval

of the National Indian Gaming Commission (“NIGC”) Chairman. 25 U.S.C. §

2711(a)(1). 1 Unapproved management contracts are void, 25 C.F.R. § 533.7, and

a gaming operation that violates any provision of the IGRA is subject to closure

and fines of up to $25,000 per violation. 25 U.S.C. § 2713.

      On April 30, 2001, the Kickapoo Tribe of Oklahoma entered into an



      1
        A management contract is a contract that “provides for the management of
all or part of a [tribal] gaming operation.” 25 C.F.R. § 502.15.

                                          2
Operating Lease Agreement with First American. The Operating Lease provided

for constructing, equipping, and operating a Class II casino on tribal land. 2 First

American agreed to construct the casino and lease all the gaming equipment it

required. The Tribe agreed to repay, without interest, the costs of construction,

although First American guaranteed a monthly payment to the Tribe of $20,000

which took precedence over repaying the construction loan. In return for lease of

the gaming equipment, First American was to be paid forty percent of the

operation’s net revenues. First American indicates that it spent $859,545.90

“establishing and developing” the casino, which opened May 23, 2001. On June

13, 2001, the NIGC notified the Tribe that its gaming ordinances did not comply

with the requirements of the IGRA. The Tribe voluntarily closed the casino, and

on June 30, 2001 passed gaming ordinances that subsequently met with NIGC

approval. Also in June 2001, the Tribe submitted the Operating Lease to the

NIGC for an opinion as to whether the Operating Lease was a management

contract requiring NIGC approval. In a letter dated June 29, 2001, Deputy

General Counsel for the NIGC offered her opinion that the Operating Lease was a

management contract. On July 27, 2001, the Tribe’s business committee



      2
        The IGRA divides Indian gaming into three classes. Class I consists of
traditional forms of gaming associated with ceremonies and celebrations, Class II
consists primarily of bingo and related games, and Class III encompasses all other
forms of gaming, including slot machines. 25 U.S.C. § 2703.

                                          3
unanimously decided to terminate the Tribe’s relationship with First American.

On August 17, 2001, the Tribe executed a letter of intent with Multimedia Games,

and subsequently entered into a non-exclusive agreement to rent gaming

equipment from Multimedia.

                  II. Procedural History and Standard of Review

      The Operating Lease provides that any claim arising out of or related to it

must be adjudicated in the Tribe’s courts; First American has brought suit against

the Tribe in tribal court. Art. 11(A). In addition, First American filed suit

against Multimedia in Oklahoma state court, requesting injunctive relief and

damages for tortious interference with contractual and business relations.

Multimedia removed the case to federal court, where First American’s motion for

a preliminary injunction was denied.

      In March 2002, Multimedia moved for summary judgment on First

American’s claim of tortious interference with contract, arguing that the

Operating Lease fell within the regulations’ definition of a management contract

and was therefore void for lack of NIGC approval. Multimedia maintained that a

void contract cannot serve as a predicate for a claim for tortious interference with

contract and that summary judgment was therefore appropriate on this claim. The

district court denied the motion in May 2002, holding that “the language of the

Operating Lease is ambiguous with respect to whether that agreement provides for


                                         4
management of [the gaming operation] by First American.” Order of May 8, 2002

at 3.

        On the same day in June 2003, both parties moved for summary judgment.

First American urged the court to find that any provisions in the Operating Lease

providing for management were severable, and that the remainder constituted a

valid construction loan and equipment lease. Multimedia moved for summary

judgment on both the tortious interference with contract and tortious interference

with business relations claims, but on grounds unrelated to the validity of the

Operating Lease. The district court denied both motions on July 17, 2003,

holding with regard to First American’s motion that the operation of a severability

clause in the Operating Lease depended on the parties’ intentions and other

disputed fact questions. Neither party moved for summary judgment again.

        While the district court never explicitly revised its holding that the

Operating Lease was ambiguous, between July and September 2003 the district

court and the parties appear to have experienced a change of mind on the issue.

In an order following a pretrial conference, the district court stated that “[t]he

parties are in agreement that the determination as to whether the agreement is a

management contract is a question of law for the court.” Order of Sept. 2, 2003

at 3. The district court invited the parties to submit whatever extrinsic evidence

they thought relevant to the question. The court determined the Operating Lease


                                            5
to be an unapproved management contract and therefore void, “leav[ing] the

plaintiff with a claim based on the existence of a ‘business relationship.’” Order

of Sept. 6, 2003 at 3. First American accordingly tried its remaining claim for

tortious interference with business relations to a jury, which found for

Multimedia.

      First American appeals the district court’s order rejecting its claim for

tortious interference with contractual relations. First, it argues that the Operating

Lease is ambiguous and on that account should have been interpreted by a jury.

Second, even if the language of the Operating Lease is unambiguous and

therefore suitable for interpretation as a matter of law, First American maintains

that the district court should have found the Operating Lease not to be a

management contract. Third, even if the lease is an unapproved management

contract, First American insists that it can nevertheless form the basis for a suit

for tortious interference with contract. Finally, First American urges that we

sever those portions of the contract which might make it a management contract,

leaving the remainder of the contract to furnish a basis for its claim for tortious

interference with contract.

      The district court did not specify the legal nature of its September 6, 2003

order rejecting First American’s claim for tortious interference with contract. We

conclude, however, that the court granted summary judgment. The order


                                          6
essentially adopts the reasoning put forward by Multimedia’s briefs in support of

its first motion for summary judgment, suggesting that the district court regarded

its order of September 6 as a grant of summary judgment. Moreover, the order

does not resolve any disputed questions of fact.

      To be sure, we cannot tell whether the September 6 order was in the nature

of a reconsideration of the district court’s order of May 8, 2002 denying

Multimedia’s first motion for summary judgment, or whether it was a sua sponte

grant of summary judgment. Ultimately, this does not matter, because either

approach would be permissible. A court’s disposition of a single claim in a suit

involving multiple claims is subject to reconsideration until the entry of judgment

on all of the claims, absent an explicit direction for the entry of judgment on the

single claim. Fed. R. Civ. P. 54(b); see also Moses H. Cone Mem. Hosp. v.

Mercury Const. Corp., 460 U.S. 1, 12 (1983) (“[E]very order short of a final

decree is subject to reopening at the discretion of the district judge.”); Paramount

Pictures Corp. v. Thompson Theaters, Inc., 621 F.2d 1088, 1090 (10th Cir. 1980)

(“[T]he court retains the power to alter rulings until final judgment is entered on a

cause.”).

      The district court could also have granted summary judgment sua sponte.

While we do not encourage the practice of granting summary judgment sua

sponte, we will not reverse absent evidence of prejudice. So long as “the losing


                                          7
party was on notice that [it] had to come forward with all of [its] evidence,” a sua

sponte grant of summary judgment may be appropriate. Ward v. Utah, 398 F.3d

1239, 1245–46 (10th Cir. 2005) (quoting Celotex Corp v. Catrett, 477 U.S. 317,

326 (1986)). Since Multimedia’s first motion for summary judgment was argued

on precisely the grounds ultimately adopted by the district court, First American

was on notice to provide all of its evidence relevant to this argument. Moreover,

before ruling on whether the Operating Lease was a management contract—the

same ruling that disposed of the tortious interference with contract claim—the

district court invited the parties to proffer any extrinsic evidence they thought

relevant to this question. Order of Sept. 2, 2003 at 2.

      While it would have facilitated appellate review for the district court to be

more explicit about what it was doing, the district court did not commit reversible

error in proceeding as it did. Whatever the precise path the district court took to

granting summary judgment, we review that grant de novo, applying the same

legal standard employed by the district court. Simms v. Okla. ex rel Dep’t of

Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999).

Summary judgment is appropriate if there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

                                    III. Analysis

A. Ambiguity and Extrinsic Evidence


                                          8
      First American first complains that the district court erred in construing an

ambiguous contract as a matter of law. The district court’s reception of extrinsic

evidence, in First American’s estimation, confirms the court’s unchanged

assessment of the Operating Lease as ambiguous, violates the Oklahoma law of

contracts, and requires reversal. Although the district court’s admission of

extrinsic evidence may have been error, we do not agree that the district court

used the evidence to construe an ambiguous contract, or that any error in

admitting the evidence warrants reversal.

      First American emphasizes that the district court “never recanted” its early

determination that the Operating Lease is ambiguous. Aplt. Br. at 19. But the

court’s September 2003 orders amply demonstrate that the district court did in

fact revise its earlier finding. First, the parties and the court were in apparent

agreement that the construction of the contract was a matter of law, an agreement

inconsistent with a continuing belief that the Operating Lease is ambiguous.

Second, while extrinsic evidence is often received to resolve contractual

ambiguities, the district court’s September 2003 orders explain that the evidence

was intended to provide context for the agreement, not to clarify any ambiguities.

In admitting extrinsic evidence the court was “not so much concerned about

whether or not any particular language in the agreement is ambiguous as it [was]

about the overall context in which the agreement was entered into and the


                                           9
business purposes which animated the parties to the contract in entering into the

contract.” Order of Sept. 2, 2003 at 2. In its September 6 order, the district court

put the extrinsic evidence submitted to the use anticipated in the earlier order; the

court’s conclusion that the Operating Lease is a management contract is “based on

the language of the agreement,” and the extrinsic evidence shows that this

conclusion “is entirely consonant with the context in which the agreement was

negotiated and executed and the business purposes of the parties to the

agreement.” Order of Sept. 6, 2003 at 2. The admission of extrinsic evidence thus

did not signal an ongoing assessment of the contract as ambiguous.

      But even if the district court did revise its earlier finding of ambiguity,

First American argues that the district court nevertheless erred in admitting

extrinsic evidence to construe an unambiguous contract. The district court’s

September 2 order distinguishes between the use of extrinsic evidence to clarify

an ambiguous contract and the use of extrinsic evidence to illuminate the context

in which an unambiguous contract was executed. There is considerable support

for the district court’s position, some of it from the Oklahoma courts and this

Court. See Amoco Production Co. v. Lindley, 609 P.2d 733, 741–42 (Okla. 1980)

(“The contract can be explained through the circumstances at the time of

contracting and subsequently taking into consideration the subject matter

thereof.”); Gibbs v. Trinity Universal Ins. Co., 330 P.2d 1035, 1037 (Okla. 1958)


                                          10
(“In order to ascertain the intent [of the parties to a contract], it is sometimes

necessary, and always proper, to consider the situation of the parties and the legal

principles which they are presumed to know and have in mind.”); see also First

Nat. Bank in Dallas v. Rozelle, 493 F.2d 1196, 1200–01 (10th Cir. 1974) (“[T]he

surrounding circumstances and the relationship of the parties should be taken into

consideration. . . . [C]onstruing the contract in the light of the surrounding

circumstances known to the parties at the time of its execution does not violate

the parol evidence rule, even though the writing is not deemed ambiguous.”)

(internal citations omitted) (applying Oklahoma law); 11 Williston on Contracts §

32:7 (4th ed. 1999); 5 Corbin on Contracts § 24.7 (rev. ed. 1998); Restatement

(Second) Contracts § 212(1) & cmt. b (1981).

      First American insists, however, that the current state of Oklahoma contract

law precludes the use of extrinsic evidence to interpret unambiguous contracts.

See Pitco Production Co. v. Chaparral Energy, Inc., 63 P.3d 541, 546 (Okla.

2003) (“To decide whether a contract is ambiguous we look to the language of the

entire agreement. . . . If a contract is complete in itself, and when viewed as a

totality, is unambiguous, its language is the only legitimate evidence of what the

parties intended. That intention cannot be divined from extrinsic evidence but

must be gathered from a four-corners’ examination of the instrument.”) (footnotes

omitted); Gamble, Simmons & Co. v. Kerr-McGee Corp., 175 F.3d 762, 767 (10th


                                           11
Cir. 1999) (“If the contract is ambiguous . . . we may resort to extrinsic evidence .

. . to construe the agreement. However, if the contract is unambiguous its

language is the only legitimate evidence of what the parties intended . . . .”)

(internal citation omitted).

      When sitting in diversity jurisdiction, this court applies the most recent

version of the law articulated by the state’s highest court. Vitkus v. Beatrice Co.,

127 F.3d 936, 941–42 (10th Cir. 1997). The current state of the Oklahoma law of

contracts appears to be that unambiguous contracts may be construed only in light

of the language contained within the contracts’ four corners. We need not resolve

this question of state law, however, because an error in the admission of evidence

is harmful only if the substantial rights of a party are affected. Fed. R. Civ. P. 61.

Because we agree with the district court’s ultimate determination that the contract

is unambiguously a management contract, the district court’s error in admitting

extrinsic evidence was harmless. Cf. U.S. v. 1,253.14 Acres, 455 F.2d 1177, 1180

(10th Cir. 1972) (holding that the admission of a letter written six months after

the contract was executed was “not prejudicial since the court's judgment is

sustained by evidence independent of the letter”).

B. Management Contracts

      First American next argues that the district court erred in holding that the

Operating Lease is a management contract, and thus subject to NIGC approval.


                                          12
The district court found the Operating Lease to be “much more than a vendor’s

agreement to provide gaming equipment.” Order of Sept. 6, 2003 at 2. In so

holding, the district court referred to the NIGC Deputy General Counsel’s opinion

letter and Multimedia’s March 20, 2002 brief, both of which singled out for

censure numerous provisions in the Operating Lease. According to the district

court, “[t]he provision of the totality of the expertise and services which the

[Operating Lease] obligates First American to provide would clearly amount to

management of at least ‘part of’ (indeed, major portions) of the gaming

operation.” Id.

      The regulations promulgated under the IGRA define a management contract

as “any contract, subcontract, or collateral agreement between an Indian tribe and

a contractor . . . if such contract or agreement provides for the management of all

or part of a gaming operation.” 25 C.F.R. § 502.15. While neither the statute nor

the regulations define management, the regulations do define a primary

management official as any person “who has authority . . . [t]o set up working

policy for the gaming operation.” 25 C.F.R. § 502.19.

      The Operating Lease affords First American considerable opportunity “to

set up working policy” for the Tribe’s gaming operation. The Operating Lease

obliges First American to develop employment procedures:

      [First American] shall have the responsibility in the form of
      Technical Assistance to formulate procedures approved by the

                                         13
      Business Committee, which provide for employment, direction,
      control, and discharging of all personnel performing services in and
      on the properties in connection with the maintenance, operation, and
      management of the [gaming operation] . . . Said approval shall [be]
      accomplished within ten (10) working days and in the absence of
      action shall be deemed approved.

Operating Lease, Article 4(H)(3); 25 C.F.R. §531.1(b)(12). The Operating Lease

assigns the responsibility for formulating procedures for managing employees to

First American, not to the Tribe, and there is no provision in the Operating Lease

for the Tribe to formulate those procedures itself should it disapprove of First

American’s procedures. Moreover, the language of the article assumes that the

Tribe’s business committee will approve First American’s proposed rules, and it

provides for approval by default if the Tribe does not act quickly to register any

dissatisfaction with them.

      Other provisions require First American to provide additional management

services. First American is obliged to provide “supervisors who supervise the

Skill Game Center Facilities in the compliance with the terms of this agreement.”

Art. 4(A). The Tribe is given thirty days to review and approve a plan of

operation of the facilities, a plan presumably prepared by First American. Id.

First American will provide personnel who will “supervise, train, and instruct”

the Tribe’s employees for the first three months after the opening of the

operation. Art. 4(H)(2); 25 C.F.R. §531.1(b)(4).

      It is not only the definition of management extrapolated from the

                                         14
regulations’ definition of primary management official that suggests the

Operating Lease is a management contract. The statute and regulations also list

responsibilities and benefits a contract must allocate between tribe and

management contractor if it is to be approved by the NIGC. These requirements

include limits on the term of a management contract and the percentage of a

gaming operation’s income the management contractor may receive as a fee,

provision for a guaranteed minimum monthly payment to the tribe, and the

assignment of a variety of functions to one party or the other. There is no

requirement that each of the enumerated functions be performed by the

management contractor, only that the “responsibilities of each of the parties for

each identifiable function” be enumerated. 25 C.F.R. § 531.1(b).

      The Operating Lease contains a number of features the statute and

regulations require of management contracts. The Operating Lease provides that

First American will receive “as an Equipment Lease Fee” forty percent of

monthly net game revenues from the gaming operation. Art. 5(B)(1)(a). Forty

percent of net revenues is the maximum percentage permitted by the statute, 3 a

coincidence that suggests the Operating Lease was drafted with a view to


      3
       The statute sets the ceiling for the percentage fee at thirty percent in
ordinary cases. 25 U.S.C. § 2711(c)(1); 25 C.F.R. §531.1(i)(1). It is only when
the NIGC Chairman determines that the capital expenditure and income
projections associated with a project justify a higher fee that forty percent may be
charged.

                                         15
compliance with this restriction. See 25 U.S.C. § 2711 (c)(2); 25 C.F.R.

§531.1(i)(2). That suggestion is reinforced by the fact that the length of the

Operating Lease is five years, the maximum term permitted by the statute. Art.

3(B); 25 U.S.C. § 2711(b)(5); 25 C.F.R. §531.1(h). 4 The Operating Lease also

satisfies the statute’s requirement that the Tribe be guaranteed a “minimum . . .

payment . . . that has preference over the retirement of development and

construction costs.” 25 U.S.C. § 2711(b)(3); 25 C.F.R. §531.1(f). The Operating

Lease guarantees the Tribe a monthly payment of $20,000 from First American,

which “takes precedence over the reimbursements of development and

construction costs advanced by [First American].” Art. 5(B)(1)(c). The

Operating Lease also sets a ceiling for the amount First American will spend on

development and improvements, and a corresponding limit on the amount it can

recover from the Tribe, as required by the statute. Art. 4(B); 25 U.S.C. §

2711(b)(4); 25 C.F.R. §531.1(g).

      The district court’s determination that the Operating Lease is

unambiguously a management contract is supported by an NIGC Bulletin

discussing in general terms the distinction between management contracts and


      4
       The Operating Lease provides that the Tribe and First American may
renegotiate the contract for two additional years, bringing the term of the contract
to seven years, the maximum length permitted by the statute even with a showing
that capital expenditure and income projections justify an increased term. Art.
3(B); 25 U.S.C. § 2711(b)(5); 25 C.F.R. 531.1(h).

                                          16
consulting agreements and by an informal opinion letter authored by the NIGC

Deputy General Counsel identifying the Operating Lease as a management

contract. The informal pronouncements of an agency, which are not subject to

agency rule-making procedures, do not warrant Chevron deference. See S. Utah

Wilderness Alliance v. Dabney, 222 F.3d 819, 828 (10th Cir. 2000). Rather than

requiring our deference, such materials may be accepted by a court only as they

have power to persuade. Skidmore v. Swift, 323 U.S. 134, 140 (1944). While we

do not defer to the opinions expressed in the Opinion Letter and Bulletin 94-5, we

do observe that the NIGC’s apparent position coincides with our holding in this

case.

        Bulletin 94-5 defines management broadly to include “planning, organizing,

directing, coordinating, and controlling . . . all or part of a gaming operation.”

NIGC Bulletin 94-5 at 2. The Bulletin singles out seven management activities as

especially probative of the question whether an agreement is a management

contract. Id. at 2–3. An agreement need not include all seven activities to be a

management contract; the “presence of all or part of these activities in a contract

with a tribe strongly suggests that the contract or agreement is a management

contract requiring [NIGC] approval.” Id. at 2. The Operating Lease contains five

of the seven provisions the Bulletin identifies as highly suggestive of a

management agreement: provision for accounting procedures, payment of a


                                          17
minimum guaranteed amount to the tribe, construction financed by a non-tribal

party, a contract that establishes an ongoing relationship between a tribe and non-

tribal party, and compensation based on a percentage fee.

      This conclusion is reinforced by the fact that the Operating Lease does not

much resemble a consulting agreement, which Bulletin 94-5 opposes to

management contracts. A contract that identifies a finite task, specifies a date for

its completion, and provides recompense based on an hourly or daily rate or fixed

fee “may very well be determined to be a consulting agreement” rather than a

management contract. Bulletin 94-5 at 3.

      The opinion letter authored by the NIGC Deputy General Counsel also

identifies the Operating Lease as a management contract. The opinion letter

singles out provisions in the Operating Lease permitting First American to

develop procedures, supervise completion of construction and improvements, and

train and supervise employees for the first three months of operation. The

opinion letter also notes that a five year term is “typical” of management

contracts, and that reimbursement based on a percentage fee gives First American

a strong incentive to manage, so as to maximize its own return. Opinion Letter at

2–3. While the Bulletin and the opinion letter do not compel our deference, they

do offer confirmation of our conclusion that the Operating Lease is indeed a

management contract.


                                         18
      Despite the close correspondence between the Operating Lease and the

requirements of the regulations, First American insists that the Operating Lease is

not a management contract because neither party intended it to be a management

contract, because it was not performed as a management contract, and because it

confers no rights to manage, only opportunities to do so at the Tribe’s request. It

is questionable whether Oklahoma law permits the use of extrinsic evidence in

construing unambiguous contracts, and even if it did, the evidence as to the

parties’ intentions and the manner in which the contract was performed does little

to advance its position.

      First American’s last argument, however, that a contract is only a

management contract if it confers rights rather than opportunities to manage,

would be significant if it accurately stated the law. But this argument is

problematic for several reasons, not least of which is the fact that neither the

statute nor the regulations contain a definition of manager or management that

would suggest that management is only management when the manager’s

decisions are not subject to tribal oversight. Nor does the ordinary definition of

management suggest that a manager is not a manager if an owner, board, or other

manager is capable of overriding particular management decisions. Bulletin 94-5

agrees that “[t]he exercise of [ultimate] decision-making authority by the tribal

council or the board of directors does not mean that an entity or individual


                                          19
reporting to such a body is not ‘managing’ all or part of the operation.” Bulletin

at 3.

        First American cites a number of cases to support its argument, but none of

them is particularly supportive. Some of the cases cited contain no analysis of

what makes an agreement a management contract because the agreement involved

was acknowledged by the parties and the court to be a management contract. See

World Touch Gaming, Inc. v. Massena Mgmt., 117 F. Supp. 2d 271 (N.D.N.Y

2000); First Am. Casino Corp. v. E. Pequot Nation, 175 F. Supp. 2d 205 (D.

Conn. 2000); United States ex rel. Mosay v. Buffalo Bros. Mgmt., Inc., 1993 WL

643378 (W.D. Wisc. Aug. 17, 1993). Others contain no relevant analysis because

they identified the agreement as a consulting agreement. See Bounceback

Technologies.Com, Inc. v. Harrah’s Entm’t, Inc., 2003 WL 21432579 (D. Minn.

June 13, 2003); Calumet Gaming Group-Kansas, Inc. v. Kickapoo Tribe of

Kansas, 987 F. Supp. 1321 (D. Kan. 1998). One of First American’s cases

identifies as a de facto management contract three contracts that, read together,

effectively revoked a tribe’s managerial authority and vested it in a purported

consultant. See United States ex rel. Bernard v. Casino Magic Corp., 293 F.3d

419, 425–26 (8th Cir. 2001). But Casino Magic does not generalize its holding

beyond its facts, and it stops well short of holding that management contracts are

only those agreements that strip a tribe of decision-making authority entirely.


                                          20
      First American does not argue that the functions the Operating Lease oblige

it to perform are not management functions. Rather, First American contends that

it is only when those functions are performed as a matter of right that a contract

granting such rights is a management contract. Neither the statute nor the

regulations imply such a limitation. Indeed, the regulations’ definition of a

management contract as an agreement that provides for the management of “all or

part” of a gaming operation suggests a definition of management that is partial

rather than absolute, contingent rather than comprehensive. The Operating Lease

allowed First American to set up the working policy of the Tribe’s gaming

operation, and many of its features bear more than a passing resemblance to the

minimum requirements of a management contract. The district court correctly

determined that the Operating Lease is unambiguously a management contract.

                       C. Tortious Interference with Contract

      First American next complains that even if the district court correctly

determined the Operating Lease to be a management contract, it erred in holding

that the Lease could not serve as the basis of a claim for tortious interference with

contract. The district court held that “[t]he agreement was not approved by the

NIGC, as is required for management contracts. It is, for that reason, void. . . .

[T]his determination leaves the plaintiff with a claim based on the existence of a

‘business relationship’ . . . .” Order of Sept. 6, 2003 at 3. Implicit in this ruling


                                           21
is the conclusion that a void contract may not form the basis of a claim for

tortious interference with contract.

      The regulations announce in clear terms the consequences of failing to

obtain NIGC approval for a management contract: “Management contracts . . .

that have not been approved by the Secretary of the Interior or the Chairman in

accordance with the requirements of this part, are void.” 25 C.F.R. § 533.7.

First American concedes that the regulation designates unapproved management

contracts as void, but urges us to interpret the term “void” as meaning

“unenforceable,” claiming this interpretation is necessary “to avoid illogical,

unreasonable or inconsistent results.” Aplt. Br. at 33–34. After all, First

American reasons, all management contracts are unapproved management

contracts until they are approved by the Chairman of the NIGC. If those

unapproved contracts are truly void because unapproved, then there will never be

anything for the NIGC to approve. The “illogical, unreasonable, or inconsistent”

result that flows from reading the regulation to mean what it says is that if the

Operating Lease “were truly ‘void’ then it would not be capable of becoming

enforceable through the approval of the NIGC.” Aplt. Br. at 37. This is not

convincing. A contract is an agreement to which the law attaches a duty to

perform and penalties for nonperformance. See Black’s Law Dictionary 318 (7th

ed. 1999). Certain formalities, which can vary with the circumstances, must take


                                         22
place before an agreement becomes a contract. The regulations’ requirement that

management contracts be approved to be valid creates no ontological mystery

whereby a contract springs fully-fashioned from nothingness, but rather identifies

a formality necessary before an agreement to manage a tribal gaming operation

can become a contract so to manage. Lacking the formality of NIGC approval, an

agreement to manage does not become a contract: it is void. See Casino Magic,

293 F.3d at 421 (“For a management contract involving Indian land to become a

binding legal document, it must be approved by the . . . [NIGC].”).

      Apart from the argument that a literal reading of the statute leaves nothing

for the NIGC to approve, First American has failed even to argue that the plain

language of the regulation leads to the “illogical, inconsistent or unreasonable”

results of which it complains. Absent some evidence or argument that the

language of the regulation undermines the statute under which it was

promulgated, we must decline to adopt a construction of the regulation so at odds

with its language.

      Even if we were to hold that an unapproved management contract is merely

unenforceable, rather than void, it would not follow that First American has a

claim for tortious interference. Oklahoma law requires an enforceable contract as

a predicate to a suit for tortious interference with contract: “The right to recover

for the unlawful interference with the performance of a contract presupposes the

                                          23
existence of a valid enforceable contract.” Ellison v. An-Son Corp., 751 P.2d

1102, 1106 (Okla. Ct. App. 1987) (quoting Bailey v. Banister, 200 F.2d 683, 685

(10th Cir. 1952)). First American attempts to distinguish Ellison and Bailey by

arguing that the Operating Lease “was still subject to NIGC approval and could

still have become both valid and enforceable if that approval was conferred.”

This distinction is not a distinction at all, but rather a description of the situation

of the plaintiffs in both Ellison and Bailey. The plaintiff in Ellison had been the

high bidder for an oil and gas lease at a public auction but “did not have a lease

which had been accepted by the Bureau of Indian Affairs.” 751 P.2d at 1106. In

Bailey, the Assistant Area Director of Indian Affairs had accepted the purchase

price of land from the plaintiff, but the sale had not yet been authorized by the

Area Director or Secretary of the Interior. 200 F.2d at 684–85. At the point at

which the defendants in Ellison and Bailey intervened, the plaintiffs had

agreements with the potential to become contracts, but, lacking requisite

approvals, they did not have contracts. And under these circumstances the

Oklahoma Court of Civil Appeals and this Court found that the plaintiffs could

not maintain actions for tortious interference with contractual relations.

      First American invokes Prosser and Keeton in support of the proposition

that contracts voidable due to “conditions precedent to the existence of the

obligation, can still afford a basis for a tort action when the defendant interferes

                                           24
with their performance.” W. Page Keeton et al., Prosser and Keeton on Torts §

129 at 995 (5th ed. 1984) (footnote omitted). Agreements which violate public

policy, however, do not fall within this rule. In order to form the basis of a claim

for tortious interference with contract, a contract must not be “opposed to public

policy, so that the law will not aid in upholding it.” Id. at 994 (footnote omitted);

see also Restatement (Second) of Torts § 774 (“One who by appropriate means

causes the nonperformance of an illegal agreement or an agreement having a

purpose or effect in violation of an established public policy is not liable for

pecuniary harm resulting from the nonperformance.”). Congress has determined

that requiring NIGC approval of management contracts will advance its efforts to

protect tribes from unsuitable influences and to ensure that tribes are the primary

beneficiaries of Indian gaming operations. See 25 U.S.C. §§ 2702, 2711.

Oklahoma law, the law of this Circuit, and even the authorities on which First

American relies, all support the position that an unapproved management contract

may not form the basis of a suit for tortious interference with contract. Such

perfect agreement is sufficiently rare that we are loath to disturb it.

D. Severability

      Finally, First American argues that the district court erred in failing to give


                                           25
effect to the severability clause in the Operating Lease, so that the “otherwise

valid construction loan and equipment lease” could still form the basis of a suit

for tortious interference with contract. 5 Aplt. Br. at 44. The Operating Lease

provides that “each and every portion of this Agreement is severable and the

invalidity of one or more such provisions shall not in any way effect [sic] the

validity of this Agreement or any other provision of this Agreement.” Art. 16.

First American argues that since the parties’ intentions determine if a contract is

severable or entire under Oklahoma law, the existence of the severability clause

in the Operating Lease should be given “considerable weight.” Aplt. Rep. Br. at

22 (quoting 15 Williston on Contracts § 45.5 (4th ed. 2000)). We agree that

contracting parties’ intentions determine whether a contract is divisible or entire

under Oklahoma contract law. Greater Oklahoma City Amusements, Inc. v.



      5
        It may be questioned whether any part of a contract determined to be void
ab initio, including the severability provisions, may be enforced. Apart from a
single footnote in Multimedia’s Brief referring us to one case decided before
passage of the IGRA and another recently vacated by the Sixth Circuit Court of
Appeals, we have not had the benefit of the parties’ argument on this issue. As
our discussion in text makes evident, First American’s claim fails even if the
ordinary severability principles of Oklahoma contract law apply. We therefore
decline to address this question. See Griffin v. Davies, 929 F.2d 550, 554 (10th
Cir. 1991) (citation omitted).


                                         26
Moyer, 477 P.2d 73, 75 (Okla. 1970). A contract is entire if its provisions are

interdependent, so that “all of the things, as a whole, are of the essence of the

contract [so that] it appeared that the purpose was to take the whole or none.” Id.

(citation omitted).

      First American characterizes the Operating Lease as an equipment lease and

a construction loan from which any invalid management provisions can easily be

excised. We find, however, that the Operating Lease may not be neatly

anatomized into valid and invalid portions. Several of the management features

we identified above permit First American to exert considerable and continuing

influence over the day-to-day running of the Tribe’s gaming operation. The

Operating Lease permitted First American to develop employment policy, Art.

4(H)(3), to supervise employees for the first three months, Art. 4(H)(2), to create

a plan of operation, Art. 4(A), to establish a start-up budget, Art. 4(C), and to

formulate an operating budget, Art. 4(D). First American did not bargain merely

for the right to repayment of construction costs and equipment lease fees, but for

a right to repayment from the proceeds of an operation the Operating Lease had

allowed it to structure. First American’s management of the casino cannot be



                                          27
erased simply by dividing the Operating Lease at this date into construction loan,

equipment lease, and incidental management provisions, and it is far from certain

that First American would have agreed to such a substantial investment without

the ability to formulate policies ensuring the operation’s profitability.

      First American’s glib division of the contract into loan and lease also omits

discussion of the Tribe’s incentives to enter into the Operating Lease. First

American, “having held itself out to the Tribe as experienced in the field of

development and managing various business enterprises,” guaranteed the Tribe a

monthly payment of $20,000 that took precedence over the repayment of the

construction loan. Art. 5(B)(1)(c). First American “specifically agree[d] that

[this guaranteed payment] is a material and substantial term and condition of this

Agreement.” Id. First American’s tidily bifurcated version of the Operating

Lease makes no mention of this material and substantial term. A management

contract must include provision for such a payment, 25 U.S.C. § 2711(b)(3); 25

C.F.R. 531.1(f), and it seems most unlikely that the Tribe would have entered into

an agreement permitting First American to assume management functions without

also guaranteeing a minimum return to the Tribe. A contract is entire when its



                                          28
various provisions are a “package deal.” Moyer, 477 P.2d at 75. First

American’s proposed severed version of the contract does not account for a

provision that was almost certainly part of the package for which the Tribe

bargained, and is therefore unconvincing.

                                   III. Conclusion

      Non-tribal parties who enter into contracts relating to tribal gaming

undertake, in addition to ordinary business risks, certain regulatory risks as well.

First American elected to execute a de facto management contract without the

fuss and bother of NIGC approval and now wishes Multimedia to assume the

costs of First American’s decision. We conclude that under Oklahoma law an

unapproved management contract, being void, cannot be the basis for a suit

against a third party for tortious interference.

      The decision of the district court is AFFIRMED.




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