                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

GUIDIVILLE BAND OF POMO INDIANS,          
                Plaintiff-Appellee,
                                                 No. 05-17066
               v.
                                                  D.C. No.
NGV GAMING, LTD, a Florida                      CV-05-01605-SC
partnership,
             Defendant-Appellant.
                                          

NGV GAMING, LTD, a Florida                
partnership,
                                                 No. 05-17067
                Plaintiff-Appellant,
                v.                                D.C. No.
                                                CV-04-03955-SC
HARRAH’S OPERATING COMPANY,
                                                  OPINION
INC., a Delaware corporation,
               Defendant-Appellee.
                                          
         Appeal from the United States District Court
            for the Northern District of California
           Samuel Conti, District Judge, Presiding

                   Argued and Submitted
         October 16, 2007—San Francisco, California

                       Filed June 26, 2008

        Before: Stephen S. Trott and N. Randy Smith,
Circuit Judges, and Milton I. Shadur,* Senior District Judge.

   *The Honorable Milton I. Shadur, Senior United States District Judge
for the Northern District of Illinois, sitting by designation.

                                7511
7512   GUIDIVILLE BAND v. NGV GAMING
        Opinion by Judge Shadur;
       Dissent by Judge N.R. Smith
7514          GUIDIVILLE BAND v. NGV GAMING


                        COUNSEL

Stephen J. Calvacca, Law Offices of Calvacca Moran, West
Falmouth, Massachusetts; Terrence J. Cassidy, Law Offices
of Porter, Scott, Weiberg & Delehant, Sacramento, California,
for plaintiff-appellant/defendant-appellant NGV Gaming,
LTD.

Stephen M. Hart and Kimberly A. Demarchi, Law Offices of
Lewis and Roca LLP, Phoenix, Arizona; George L.
                  GUIDIVILLE BAND v. NGV GAMING                        7515
O’Connell, Craig C. Allison, Law Offices of Stevens &
O’Connell LLP, Sacramento, California, for plaintiff-appellee
Guidiville Band of Pomo Indians.

Stanley E. Siegel, Jr. and Diane B. Bratvold, Law Offices of
Rider Bennett, LLP, Minneapolis, Minnesota, for defendant-
appellee Harrah’s Operating Company, Inc.


                               OPINION

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. § 81.1 At the core of the
present dispute, that statute requires the Secretary of the
Department of the Interior (“Secretary”) to approve any “con-
tract with an Indian tribe that encumbers Indian lands for a
period of 7 or more years” before such a contract can be con-
sidered 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 Sec-
tion 81 literally— as pertaining solely to contracts that impli-
cate lands already held in trust by the federal government.
Appellees Harrah’s Operating Company (“Harrah’s”) and
Guidiville Band of Pomo Indians (“the Tribe”2), 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
   1
     That and all other provisions of Title 25 will hereafter be cited simply
“Section —,” omitting the prefatory “25 U.S.C.”
   2
     Because that Appellee has consistently referred to itself as “the Tribe”
in its briefs, we too adopt the same shorthand reference.
7516            GUIDIVILLE BAND v. NGV GAMING
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 con-
tract 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 legisla-
tive history and the language of the contract itself—we con-
clude 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.

                   I.    Factual Background

                A.      Terms of the Contract

   On July 3, 2002 the Tribe contracted with FEGV Corpora-
tion (“FEGV”) for the latter to develop and construct a gam-
ing facility on a to-be-acquired parcel of land in Northern
California. In December 2003 FEGV assigned to NGV its
rights and duties under that contract, which comprised two
separate documents: (1) a Development Agreement and Per-
sonal Property Lease (“the Lease”), and (2) a Cash Manage-
ment Agreement. Here is the purpose of the transaction as
described at the outset of the Lease:

    The Tribe requires assistance with (i) financing the
    day-to-day operations of the Tribal government, (ii)
    acquiring real property and petitioning the United
    States to accept title to such property in trust for the
    benefit of the Tribe . . . , and (iii) the development,
    design, financing, construction and initial equipping
    of the Facility.
                    GUIDIVILLE BAND v. NGV GAMING                          7517
   “Facility,” the Lease explains, includes “buildings and
improvements” that would be constructed on to-be-acquired
real property and that would then be used to conduct Class II
or Class III gaming3 for the public. Both parties intended to
transfer the to-be-acquired real property into trust, a process
set forth under Section 465 that allows the United States to
accept and hold property for the benefit of an Indian tribe.4
But to be clear: No such land existed at the time the contract
was entered into—nothing had been identified or acquired or,
least of all, had been placed in trust.

   NGV’s role in that forward-looking endeavor was to use its
“experience, expertise and resources . . . to assist the Tribe”
in accomplishing its objectives. In exchange NGV would be
compensated through a combination of fixed payments and a
percentage of gross and net revenues earned by the newly
constructed gaming facility. In addition NGV would enjoy
other rights related to the land. Most notably, under the Lease
the Tribe could not without NGV’s consent:

       Sell, dispose of, lease, assign, sublet, transfer, mort-
       gage or encumber (whether voluntarily or by opera-
       tion of law) all or any part of its right, title, or
       interest in or to the Trust Lands, the Facility, or the
       Equipment.
  3
     Class II gaming includes bingo and certain card games, but excludes
any “banked card games, electronic games of chance, and slot machines”
(Sections 2703(7)(A) and (B)). Class III gaming involves all other forms
of high-stakes games (Section 2703(8)).
   4
     Section 465 authorizes the Secretary “in his discretion, to acquire,
through purchase, relinquishment, gift, exchange, or assignment, any
interest in lands, water rights, or surface rights to lands . . . for the purpose
of providing land for Indians.” In addition the statute specifies (emphasis
added):
      Title to any lands or rights acquired pursuant to this Act . . . shall
      be taken in the name of the United States in trust for the Indian
      tribe or individual Indian for which the land is acquired, and such
      lands or rights shall be exempt from State and local taxation.
7518           GUIDIVILLE BAND v. NGV GAMING
   Finally the Lease set forth several commitments, one of
which is critically important to this appeal. It specified that
the Tribe would “[o]btain all necessary and appropriate fed-
eral and tribal permits and approvals necessary with respect
to the enforceability of the [Lease and Cash Management
Agreement] or the operation of the Facility.” Among such
potential federal approvals was the approval contemplated by
Section 81. Another potentially relevant federal statute was
Section 2710(b)(2)(A), which calls for the Chairman of the
National Indian Gaming Commission (“Gaming Commis-
sion”) to approve “any tribal ordinance or resolution” involv-
ing Class II gaming on Indian lands.

       B.   Rescission of Tribe’s Contract with NGV

   Beginning in January 2004 Harrah’s and Upstream Molate,
LLC (“Upstream”) partnered and entered into negotiations to
purchase 354 acres of land from the City of Richmond, Cali-
fornia. Harrah’s and Upstream intended to place that land in
trust on behalf of the Tribe and to use the land to build a gam-
ing facility that the Tribe would operate. According to NGV,
Harrah’s and Upstream began those negotiations despite
knowing of the Tribe’s pre-existing obligations to NGV.

   On August 2, 2004 the Tribe—acting through its chairper-
son, Merlene Sanchez—sent a letter to NGV seeking to
rescind their contract. Sanchez explained that the Tribe had
submitted their contract to the Bureau of Indian Affairs
(“Bureau”) and the Gaming Commission for both agencies’
approval under Sections 81 and 2710. Because the Gaming
Commission had already informed the Tribe that its contract
with NGV was illegal, Sanchez concluded that the Tribe had
“no choice but to rescind the agreement.”

   Indeed, in a letter dated July 21, 2004 the Gaming Commis-
sion explained that the Tribe’s contract with NGV violated
Section 2710(b)(2)(A). It stated that “the Agreements evi-
dence Developer’s proprietary interest in the Tribe’s gaming
               GUIDIVILLE BAND v. NGV GAMING                7519
activity” and that such a proprietary interest contravened the
Indian Gaming Regulatory Act (“IGRA”).

   Similar news came from the Bureau on April 13, 2005.
After reviewing the Lease and Cash Management Agreement,
that agency “concluded, as a matter of law, that the agree-
ments must be approved by the Secretary under Section 81 in
order for them to be valid and enforceable.” Absent such
approval, the Bureau explained, the contract was “unenforce-
able as a matter of law.” Its conclusion, it noted, stemmed
from information provided to it by attorneys for the Tribe
“showing that the United States had accepted at least three
parcels in Mendocino County, California, into trust for the
benefit of the Tribe in 1999.” Those 44 acres had been
accepted into trust in 1999 with the intention that they would
be used by the Tribe for residential development, not a gam-
ing facility. Based on the existence of the Mendocino County
property the Bureau “determined that the Tribe has an interest
in ‘Indian land’ as defined in §81(a),” and that interest was
encumbered by its contractual provision with NGV that “affir-
matively require[s] the Tribe to refrain from selling or dispos-
ing of any part of an interest the Tribe has in Indian land . . .
so long as the agreements remain in effect.”

   In August 2004—before having received the Bureau’s let-
ter but after having received the Gaming Commission’s
decision—the Tribe officially entered into an agreement with
Harrah’s and Upstream to develop and manage the Tribe’s
proposed gaming facility. That agreement contained an
indemnification clause requiring the Tribe to defend Harrah’s
against any future claims made by NGV.

                   C.   Procedural History

  NGV eventually filed suit against both Upstream and Har-
rah’s in the federal district court, alleging that those two
defendants had tortiously interfered with its existing contract
with the Tribe. Later the Tribe filed its own lawsuit seeking
7520           GUIDIVILLE BAND v. NGV GAMING
declaratory and injunctive relief against NGV, asking to have
the Lease and Cash Management Agreement declared invalid
under applicable federal statutes. Both actions—NGV’s
against Upstream and Harrah’s and the Tribe’s against NGV
—were later consolidated.

   On July 28, 2005 the Tribe, Harrah’s and Upstream all
moved for summary judgment. NGV responded by contesting
the district court’s subject matter jurisdiction. It claimed that
there was no case or controversy between NGV and the Tribe,
for NGV had assured the Tribe that it would not file an action
against it. For its part the Tribe contended that there was sub-
ject matter jurisdiction based upon (1) the Tribe’s obligation
to indemnify Harrah’s against claims made by NGV and (2)
the Tribe’s continuing interest in developing a gaming facility
without fear of litigation.

   On October 19, 2005 the district court granted the Tribe’s
motion for declaratory relief. In particular the court held that
(1) it had subject matter jurisdiction over the Tribe’s declara-
tory relief action; (2) Section 81 applied to contracts involv-
ing lands not yet acquired and not yet transferred into trust;
and (3) because the Secretary of the Interior had not approved
the Tribe’s contract with NGV as required under Section 81,
the contracts were invalid. As a result the district court
granted the Tribe’s motion. In so doing it also granted Har-
rah’s and Upstream’s motion for summary judgment, dismiss-
ing NGV’s tortious interference claim as a matter of law
because no valid contract existed between NGV and the
Tribe.

   NGV timely filed this appeal. While it was pending this
court granted NGV’s motion for the voluntary dismissal of
Upstream from the matter because those two parties had set-
tled. In addition, while this appeal was pending the Tribe and
Harrah’s terminated their contract and entered into a settle-
ment agreement that provided in part for the Tribe’s contin-
ued indemnification of Harrah’s against claims made by NGV
                   GUIDIVILLE BAND v. NGV GAMING                   7521
—but the Tribe acknowledges that its original contract with
Harrah’s (the one that spawned the termination and its contin-
ued indemnification undertaking) lacked the approval neces-
sary under Section 2710.

                    II.   Standards of Review

   We review both the existence of subject matter jurisdiction
and a grant of summary judgment de novo (Galt G/S v. JSS
Scandinavia, 142 F.3d 1150, 1153-54 (9th Cir. 1998)). In
reviewing the latter decision, we determine whether there are
any genuine issues of material fact for trial, viewing the evi-
dence in the light most favorable to the nonmovant (Gammoh
v. City of La Habra, 395 F.3d 1114, 1122 (9th Cir. 2005)).
We also review de novo the interpretation and construction of
statutes (Soltani v. W. & S. Life Ins. Co., 258 F.3d 1038, 1041
(9th Cir. 2001)), as well as the principles of contract interpre-
tation as applied to the facts before us (L.K. Comstock & Co.
v. United Eng’rs & Constructors Inc., 880 F.2d 219, 221 (9th
Cir. 1989)).

            III.   The Tribe’s Claim Against NGV

   We begin with the Tribe’s effort to obtain a declaratory
judgment, seeking a proclamation that its agreement with
NGV was invalid because it had not been approved by the
Secretary pursuant to Section 81 or, in the alternative, because
it violated Section 2710. We have no occasion to decide the
merits of those questions—at least not at this stage of this opin-
ion5 —because we conclude that the Tribe’s efforts do not
belong in the federal courts at all.
  5
    Because the Tribe and Harrah’s advance the same substantive argu-
ments as to why the agreement between the Tribe and NGV is invalid, and
because there is no doubt that this court has subject matter jurisdiction
over NGV’s claim against Harrah’s, we eventually reach the merits of the
case (see Section IV)—we just do not do so in the context of the Tribe’s
claim.
7522              GUIDIVILLE BAND v. NGV GAMING
   [1] It is undisputed that the Tribe’s claimed adversary NGV
has released it from any liability whatever, looking instead
solely to a claim against Harrah’s. And the Tribe has itself
recognized that its management contract with Harrah’s (which
would have imposed on it an indemnification obligation cov-
ering NGV’s claims against Harrah’s) was void under Section
2705(a)(4) due to the Tribe’s failure to have obtained
approval of that contract by the Chairman of the Gaming Com-
mission.6 That being so, the Tribe cannot bootstrap itself into
an Article III case or controversy vis-a-vis NGV by undertak-
ing a new indemnification obligation as part of an agreement
to terminate its already void contract with Harrah’s—an
indemnification promise that is wholly lacking in consider-
ation and is hence itself invalid.7

   In short, the Tribe—which does not itself face any potential
liability to NGV—must try to fall back on its claimed sense
of uncertainty about any future essays into the gambling
industry. But those uncertainties exist only in outer space—
they surely cannot be trotted out against NGV, with which the
Tribe no longer has any contractual relationship or any ongo-
ing exposure to liability. Instead such uncertainties raise
wholly speculative concerns that call for a type of purely
advisory opinion that federal courts are prohibited by the
  6
     Because the Tribe’s agreement with Harrah’s was subject to a different
statutory provision from the section applicable to the Tribe’s agreement
with NGV, such Section 2705(a)(4) invalidity did not extend to the latter.
   7
     It is most disturbing that the Tribe and Harrah’s parted company by ter-
minating their agreement back in March of 2007 but concealed that fact
until oral argument of the case was almost upon us months later (remem-
ber that the terminated contract was the peg on which the Tribe sought to
hang its jurisdictional hat). Now the Tribe seeks to supplement the record
before us with material previously withheld both from NGV and from this
Court in an effort to salvage its claim. But as indicated in the text, any
claimed case or controversy as between the Tribe and NGV ceased to exist
once their contract was terminated and NGV released the Tribe from any
potential liability, given the invalidity of the original Tribe-Harrah’s
agreement that contained the claimed indemnification provision.
                 GUIDIVILLE BAND v. NGV GAMING              7523
Constitution from giving to putative litigants (see, e.g., City
of Los Angeles v. Lyons, 461 U.S. 95, 106-07, 110-11 (1983),
holding that because Lyons could not show that he “faced a
real and immediate threat of again being illegally choked,” his
claim was “speculative” in nature and therefore could not
meet Article III’s “case or controversy” requirement).

   As already stated, that alone should operate to knock the
Tribe out of the box in terms of standing to pursue its own lit-
igation. This case scenario poses a dramatic contrast to litiga-
tion such as a patent case seeking a declaratory judgment (see,
e.g., Société de Conditionnement en Aluminium v. Hunter
Eng’g Co., 655 F.2d 938, 942-44 (9th Cir. 1981)), where there
are two parties involved in the dispute with actual interests
“of sufficient immediacy and reality” (Maryland Cas. Co. v.
Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941)), even though
no infringement action has been brought.

   [2] If, as and when the Tribe chooses to engage in a future
proposed entry into gambling activity with some other party
and may then seek a declaration of its rights under a contract
with that party, there may perhaps be federal subject matter
jurisdiction to address that subject (a question that need not be
answered here because it is purely hypothetical). But here,
with the contractual relationship that once bound NGV and
the Tribe already having been terminated, there is no one on
the other side of the “v.” sign from the Tribe—and that is fatal
in jurisdictional terms. We thus vacate the district court’s
decision to grant the Tribe the declaratory relief it sought.

           IV.    NGV’s Claim Against Harrah’s

   We turn now to NGV’s claim that Harrah’s tortiously inter-
fered with the contract that once bound NGV and the Tribe.
Under California law “[t]he elements of a cause of action for
intentional interference with contract are: (1) a valid contract
between plaintiff and a third party; (2) defendants’ knowledge
of the contract; (3) defendants’ intentional acts designed to
7524              GUIDIVILLE BAND v. NGV GAMING
induce a breach or disruption of the contractual relationship;
(4) actual breach or disruption of the contractual relationship;
and (5) resulting damage” (Tuchscher Dev. Enters., Inc. v.
San Diego Unified Port Dist., 132 Cal. Reptr.2d 57, 73 (Cal.
Ct. App. 2003)). At issue in this appeal is the first element of
the tort: NGV contends that its contract with the Tribe was
valid because it did not require approval under Section 81,
while Harrah’s argues that the contract was invalid precisely
because it lacked such approval. In the alternative, Harrah’s
argues that the contract violated Section 2710, which requires
that an “Indian tribe have the sole proprietary interest and
responsibility for any gaming activity.”

   We address each of those arguments in turn, tackling the
Section 81 inquiry first. That inquiry calls for a consideration
of a number of factors, including the plain language of the
statute, the role (if any) of 1 U.S.C. §1, relevant legislative
history and, of course, the actual language of the agreement
that once bound NGV and the Tribe.

             A.     Plain Language of Section 81

   Our analysis begins with the plain language of Section 81,
not only because that is the natural starting point dictated by
all accepted canons of statutory construction but also because
the statute’s unequivocal present-tense use of the word “is”
does a tremendous amount of the legwork in settling one of
the main questions raised on this appeal. In full Section 81(a)
defines the term “Indian lands” as (emphases added):

    lands the title to which is held by the United States
    in trust for an Indian tribe or lands the title to which
    is held by an Indian tribe subject to a restriction by
    the United States against alienation.

Section 81(b) then prescribes:

    No agreement or contract with an Indian tribe that
    encumbers Indian lands for a period of 7 or more
                   GUIDIVILLE BAND v. NGV GAMING                        7525
      years shall be valid unless that agreement or contract
      bears the approval of the Secretary of the Interior or
      a designee of the Secretary.

   [3] In this instance the Tribe-NGV contract was not within
the purview of Section 81 because it plainly did not implicate
“Indian lands” in statutory terms. Section 81(a)’s use of the
present tense in defining “Indian lands” unambiguously pre-
scribes that title to the real estate must already be held by the
United States in trust for a tribe. Had Congress intended that
Section 81 also extend to lands that might later be held in
trust, it would have been the simplest of matters to word the
statute differently. That it did not do so is not a linguistic
decision to be treated lightly (see SEC v. McCarthy, 322 F.3d
650, 656 (9th Cir. 2003), explaining that “Congress’s explicit
decision to use one word over another in drafting a statute is
material” and adding that “[i]t is a decision that is imbued
with legal significance and should not be presumed to be ran-
dom or devoid of meaning”; Biehl v. CIR, 351 F.3d 982, 987
(9th Cir. 2003), writing that courts “will not stretch the statu-
tory language to cover a situation not contemplated by Con-
gress”).

   [4] Here the parties entered into their contract expressly
contemplating— specifically intending—that land would later
be identified and acquired and then still later transferred to
the United States to be held in trust for the Tribe. But no such
lands existed when the Tribe and NGV entered into their con-
tract. Hence the portion of Section 81 that limits the duration
of encumbrances on “Indian lands” is simply inapplicable to
this case.

       B.    Role of the Dictionary Act in Interpreting
                           Section 81

   [5] Contrary to the contention raised by the dissent, nothing
in our reading of Section 81 contravenes 1 U.S.C. §1.8 More
  8
   That statute was not adverted to by either party in the original briefing
on the appeal (or for that matter before the district court). We invited input
7526              GUIDIVILLE BAND v. NGV GAMING
commonly referred to as the Dictionary Act, that statute reads
in relevant part:

     In determining the meaning of any Act of Congress,
     unless the context indicates otherwise—

           ....

           words used in the present tense include the
           future as well as the present.

Focusing upon the phrase “words used in the present tense
include the future as well as the present,” the dissent asserts
that the word “is” as used in Section 81(a) encompasses both
lands that are currently held in trust by the United States for
an Indian tribe and lands that might eventually be held in sim-
ilar fashion. But in so doing, the dissent fails to grapple ade-
quately with (1) the Supreme Court’s repeated instructions
regarding proper statutory construction and (2) the directive
in the Dictionary Act itself that compels us to consider first
the “context” of the statute.

   [6] First, the Supreme Court has not once invoked the Dic-
tionary Act in an effort to convert an unambiguous verb tense
into claimed ambiguity, let alone then going on to employ that
manufactured ambiguity as a stepping stone to altering the
plain sense of a statute.9 Here is the succinct directive in

from the litigants on that score following oral argument, and each party
has had ample opportunity to address through their supplemental briefing
the question of what if any effect the Dictionary Act has on the interpreta-
tion of Section 81.
   9
     On those limited occasions that the Supreme Court has turned to the
Dictionary Act, it has done so to illustrate better the meaning of the word
“person,” which the statute defines as “includ[ing] corporations, compa-
nies, associations, firms, partnerships, societies, and joint stock compa-
nies, as well as individuals” (see, e.g., Inyo County, Cal. v. Paiute-
Shoshone Indians of the Bishop Cmty. of the Bishop Colony, 538 U.S. 701,
                  GUIDIVILLE BAND v. NGV GAMING                     7527
United States v. Wilson, 503 U.S. 329, 333 (1992) and the
cases that it cites:

     Congress’ use of a verb tense is significant in con-
     struing statutes. See, e.g., Otte v. United States, 419
     U.S. 43, 49-50 (1974); Gwaltney of Smithfield, Ltd.
     v. Chesapeake Bay Foundation, Inc., 484 U.S. 49,
     63-64, n.4 (1987).

Similarly, Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450
(2002) made clear that in “all statutory construction cases, we
begin with the language of the statute.” Inquiries into the
meaning of a statute come to an end “if the statutory language
is unambiguous and the statutory scheme is coherent and con-
sistent” (id., quoting Robinson v. Shell Oil Co., 519 U.S. 337,
340 (1997)(internal quotation marks omitted)). Given the spe-
cific and unambiguous manner in which Section 81(a) defines
the term “Indian lands,” it is not apparent why the Dictionary
Act must even be consulted.

   [7] Second, even on its own terms the Dictionary Act sup-
ports the analysis here: It looks first to “context,” and only if
the “context” leaves the meaning open to interpretation does
the default provision come into play. As defined by Rowland,
506 U.S. at 199-200 (alterations in original, emphasis added):

713 n.1 (2003) (Stevens, J., concurring in judgment); Rowland v. Cal.
Men’s Colony, 506 U.S. 194, 196 (1993); Ngiraingas v. Sanchez, 495 U.S.
182, 190-91 (1990); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 69
(1989)). We ourselves have relied on the Dictionary Act for the same pur-
pose (see United States v. Middleton, 231 F.3d 1207, 1210 (9th Cir.
2000)). And on one other occasion we have relied on the Dictionary Act
simply to corroborate an independent conclusion—derived solely from
“the plain language of the statute”—that a criminal statute written in the
present tense cannot be used to penalize past behavior (United States v.
Jackson, 480 F.3d 1014, 1019 (9th Cir. 2007)). Because none of those
cases approaches the situation presented here, none affects this decision.
7528              GUIDIVILLE BAND v. NGV GAMING
     “Context” here means the text of the Act of Con-
     gress surrounding the word at issue, or the texts of
     other related congressional Acts, and this is simply
     an instance of the word’s ordinary meaning: “[t]he
     part or parts of a discourse preceding or following a
     ‘text’ or passage or a word, or so intimately associ-
     ated with it as to throw light upon its meaning.”
     Webster’s New International Dictionary 576 (2d ed.
     1942). While “context” can carry a secondary mean-
     ing of “[a]ssociated surroundings, whether material
     or mental,” ibid., we doubt that the broader sense
     applies here.

And Rowland, id. at 199 went on to explain that the word “in-
dicates” broadens the scope of the inquiry that a court must
make (id. at 200):

     If “context” thus has a narrow compass, the “indica-
     tion” contemplated by 1 U.S.C. §1 has a broader
     one. The Dictionary Act’s very reference to contex-
     tual “indication” bespeaks something more than an
     express contrary definition, and courts would hardly
     need direction where Congress had thought to
     include an express, specialized definition for the pur-
     pose of a particular Act; ordinary rules of statutory
     construction would prefer the specific definition over
     the Dictionary Act’s general one. Where a court
     needs help is in the awkward case where Congress
     provides no particular definition, but the definition in
     1 U.S.C. §1 seems not to fit.[10] There it is that the
     qualification “unless the context indicates otherwise”
     has a real job to do, in excusing the court from forc-
     ing a square peg into a round hole.
   10
      [Footnote by this Court] Of course that observation alone further
strengthens our original position that the Dictionary Act need not even be
considered, given that Congress did provide a specific definition of the
term “Indian lands” in Section 81(a). We nonetheless continue down this
analytical path so as to respond to the dissent’s argument on its own terms.
                  GUIDIVILLE BAND v. NGV GAMING                     7529
With that guidance in mind, we consider a series of congres-
sional acts related to Section 81—specifically, Sections 465,
2719 and 271—that clearly avoid an “awkward” rendering of
Section 81.

   Sections 465 and 2719 are particularly instructive, for they
respond directly to the dissent’s concern that construing Sec-
tion 81 so that it applies only to contracts involving lands
already in trust would allow parties to evade federal review
entirely. Manipulative parties, the dissent fears, could take
advantage of such an interpretation by carefully orchestrating
the timing of any agreement so that any provision encumber-
ing Indian lands would be executed only before placing land
in trust. But such fears are more than adequately assuaged by
the existence of Sections 465 and 2719, both of which guaran-
tee that a contract such as the one that NGV and the Tribe had
entered into can never escape the federal government’s atten-
tion.

   First, Section 465 (already quoted in n.4) and its imple-
menting regulations set forth an extensive review process that
the Secretary of the Interior must undertake before taking
lands into trust (see, e.g., 25 C.F.R. §§151.3, 151.11(c); Larry
E. Scrivner, Acquiring Land into Trust for Indian Tribes, 37
NEW ENG. L. REV. 603, 606-07 (2003)(“Scrivner”),11 describ-
ing the trust application process and the Secretary’s duty to
investigate, among other things, the purpose for which the
land will be used and the effect that placing the land into trust
will have on the tax bases of local government; Mary Jane
Sheppard, Taking Indian Land Into Trust, 44 S.D. L. REV.
681, 687-88 (1998-99) (“Sheppard”),12 similarly describing
the comprehensive nature of a Section 465 review). During
  11
      At the time Scrivner authored that piece, he was serving as acting
director of the Bureau’s Office of Trust Responsibilities.
   12
      Sheppard has previously served as a staff attorney for the Gaming
Commission and for the Division of Indian Affairs, Office of the Solicitor
in the Department of the Interior.
7530            GUIDIVILLE BAND v. NGV GAMING
such a review a tribe is first required to address, among other
issues, its need for the land, the purpose for which the land
will be used, the effect that taking the land into trust would
have on state and local political subdivisions and whether a
decision to take the land into trust would comply with the
National Environmental Policy Act (see Scrivner, 37 NEW
ENG. L. REV. at 606). With that initial information in hand, the
Department of the Interior then gives state and local govern-
ments the opportunity to object to the tribe’s application
through “evidentiary documentation” demonstrating why tak-
ing the land into trust would “impact[ ] their jurisdiction or
their tax base” (id. at 607). Only after all sides have provided
their input does the Department begin its own independent
examination of the trust application, a process that “requires
a thorough analysis of all the facts and documentation, envi-
ronmental clearances, archaeological studies, and all of the
things that weigh into the action” (id.). Any final decision is
subject both to a similarly extensive administrative appeals
process and to a subsequent review in the federal courts (id.).

   And relatedly, in cases where the tribe intends to use lands
transferred into trust for gaming purposes, Section
2719(b)(1)(A) requires that the Secretary first “determine[ ]
that a gaming establishment . . . would be in the best interest
of the Indian tribe and its members, and would not be detri-
mental to the surrounding community” (see also Sheppard, 44
S.D. L. REV. at 687). In short, any concern that NGV was try-
ing to game the system by executing its contract with the
Tribe before transferring land into trust is wholly unfounded.
Instead any later effort to take lands into trust triggers an
extensive review process by the Secretary—a review that is
far more meaningful than any Section 81 proceeding that
would deal with not-yet-identified lands that might be taken
into trust in the future, because a Section 465 proceeding
addresses the suitability of a specific parcel of land in all
respects, rather than the totally speculative process that is nec-
essarily involved when a presently unknown future acquisi-
tion is sought to be made the subject of an attempted analysis.
                GUIDIVILLE BAND v. NGV GAMING                  7531
   Sections 2710(d)(3)(A) and 2710(d)(7) also help illuminate
the meaning of Section 81, particularly because both are part
and parcel of IGRA, which defines “Indian lands” in much
the same manner as Section 81 (see Section 2703(4)(B)
(emphasis added), defining “Indian lands” in part as “any
lands title to which is held in trust by the United States for the
benefit of any Indian tribe . . . .”). Section 2710(d)(3)(A) pro-
vides:

    Any Indian tribe having jurisdiction over the Indian
    lands upon which a class III gaming activity is being
    conducted, or is to be conducted, shall request the
    State in which such lands are located to enter into
    negotiations for the purpose of entering into a Tribal-
    State compact governing the conduct of gaming
    activities.

   If any State should fail to enter into such negotiations, Sec-
tion 2710(d)(7) provides the Indian tribe with a series of rem-
edies, including the right to initiate an action against the State
in federal district court. But to bring such an action, as the
Sixth Circuit has held in Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Engler, 304 F.3d 616, 618 (6th Cir.
2002), the Indian tribe must show that it has “Indian lands”
as defined by IGRA at the time of filing. Match-E-Be-Nash-
She-Wish, id. spelled out the rationale underlying its conclu-
sion in terms that bear considerably on the Section 81 ques-
tion now before us:

    Under § 2710(d)(3)(A), it is clear that the State does
    not have an obligation to negotiate with an Indian
    tribe until the tribe has Indian lands. The purposes of
    this requirement appear to be to ensure that the
    casino will be inside the borders of the State, to give
    the State notice of where it will be, and to require the
    tribe to have a place for the casino that has been fed-
    erally approved. If the Indian tribe does not have any
    land in the State that can be used for a casino, why
7532               GUIDIVILLE BAND v. NGV GAMING
     should the State waste its time negotiating about
     such a casino? In the absence of a location, the State
     would have no way to assess the environmental,
     safety, traffic, and other problems that such a casino
     could pose.

Accord, Mechoopda Indian Tribe of Chico Rancheria, Cal. v.
Schwarzenegger, No. Civ. S-03-2327WBS/GGH, 2004 WL
1103021, at *5 (E.D. Cal. Mar. 12, 2004).

   Given those practical concerns, it is no wonder that the
Bureau’s policy has been to review contracts under Section 81
only when they involve lands currently held in trust by the
United States. That policy is evinced by the Bureau’s own
April 13, 2005 letter to the Tribe, which made clear that its
conclusion that the NGV-Tribe agreement was invalid for
lack of Section 81 approval was predicated on the Tribe’s
lawyers having alerted the Bureau to its Mendocino County
property, not to the possibility of acquiring future trust lands.13

   That same policy is further confirmed through an affidavit
included in the record by NGV from Kevin Gover (“Gover”),
a former Assistant Secretary for Indian Affairs. Gover attests
that during his tenure from late 1997 to early 2001, “it was
not the [Bureau’s] policy or practice to review contracts to
determine whether such contracts fall within the scope of 25
   13
      In that letter the Bureau wrote that “[a]t an earlier stage of our review,
it was not clear whether the United States held title to any land in trust for
the benefit of the Tribe, and, as a consequence, whether the agreements
covered any ‘Indian land’ as defined in 25 U.S.C. §81(a)” (emphasis
added)). Thus the Bureau concluded that Section 81 applied to NGV’s
contract with the Tribe only after “[a]ttorneys for the Tribe . . . provided
[the agency] with documents showing that the United States accepted at
least three parcels in Mendocino County, California, into trust for the ben-
efit of the Tribe in 1999.” If the Bureau had viewed Section 81 as applying
to contracts involving lands that would later be transferred into trust, the
existence of the Mendocino County property would have been irrelevant
to its analysis of the NGV-Tribe contract.
                   GUIDIVILLE BAND v. NGV GAMING                         7533
U.S.C. §81(b) . . . in the absence of the existence of trust
lands.” Instead, in cases “where the purpose of the contract
between a developer and a tribe [was] to assist the tribe in
acquiring real property, and petitioning the United States to
accept title to such property in trust for the benefit of the
tribe,” the Bureau’s review would be done pursuant to the
regulations implementing Section 465. As Gover puts it:
“[t]he Secretary’s acceptance of title to the subject property in
trust for the petitioning tribe subsumes all approvals required
under Federal law.” And as all of that applies to the facts
before us, the fact that the Tribe and NGV would eventually
have to undergo Section 465 review if their later-acquired
lands were to be transferred into trust obviated any need to
have their contract approved under Section 81.

   [8] In conclusion, there is no reason to resort to the Dictio-
nary Act’s default rules of statutory interpresentation. Instead
the context here clearly indicates that Section 81 is limited
only to reviewing those contracts involving presently held
trust lands.

             C.     Legislative History of Section 81

   Our literal reading of Section 81 is further corroborated by
the statute’s legislative history.14 In seeking to persuade us to
read Section 81 other than in plain-language terms, Harrah’s
points to some cases that, it claims, identify a legislative his-
tory of Section 81 that supports a nonliteral reading. We have
reviewed those cases as well as the pertinent legislative his-
  14
     To be sure, Rowland, 506 U.S. at 199 does not treat legislative history
as part of the “context” of a congressional act as that word is used in the
Dictionary Act. But legislative history of course remains a frequently-
relied-upon additional tool of statutory interpretation (see, e.g., Perfect 10,
Inc. v. CCBill LLC, 488 F.3d 1102, 1111 (9th Cir. 2007), explaining that
its plain-language interpretation of the statute at issue was also “supported
by legislative history”). And it seems particularly appropriate to consider
the legislative history of Section 81 here, when each of the parties has
sought to bolster its arguments with that information.
7534              GUIDIVILLE BAND v. NGV GAMING
tory, and we conclude that those sources not only fail to sup-
port the position advanced by Harrah’s but that they instead
further corroborate our own plain-language statutory reading.

   Thus Harrah’s seeks to call to its aid Montana v. Blackfeet
Tribe of Indians, 471 U.S. 759, 766 (1985), but that case sig-
nificantly couched its view in terms that federal statutes relat-
ing to Indian tribes “are to be construed liberally in favor of
the Indians, with ambiguous provisions interpreted to their
benefit” (emphasis added). Here that proposition does not aid
Harrah’s, for Section 81’s present-tense wording leaves no
room for ambiguity.15 Indeed, even the Blackfeet Tribe con-
cept of liberal construction “in favor of the Indians” does not
call for a nonliteral reading of Section 81(b), for requiring that
more—rather than fewer—contracts be approved under Sec-
tion 81(b) “would frustrate Indian tribes’ efforts to promote
economic development and fiscal autonomy” (Penobscot
Indian Nation v. Key Bank of Me., 112 F.3d 538, 554 (1st Cir.
1997), adding that the court’s “analysis reflects the modern
trend in federal Indian policy away from outmoded paternalis-
tic practices and policies”).

   Section 81’s own evolution confirms the advent of that
more modern attitude toward Indian tribes, a perspective that
the dissent does not acknowledge. That statute was originally
enacted in 1872 to “reflect[ ] Congressional concerns that
Indians, either individually or collectively, were incapable of
protecting themselves from fraud in the conduct of their eco-
  15
     Even less (if indeed any) weight is to be ascribed to the comparable
language employed in A.K. Mgmt. Co. v. San Manuel Band of Mission
Indians, 789 F.2d 785 (9th Cir. 1986), also sought to be relied on by
appellees. A.K. Mgmt. involved an earlier and substantively different ver-
sion of Section 81—one that did not speak of “encumber[ing] Indian
lands,” but rather of agreements made with Indians that were “relative to
their lands” (see 25 U.S.C. §81 as it existed until the year 2000). More-
over, A.K. Mgmt. involved a dispute over land that was already held in
trust by the United States for an Indian tribe. For more than one reason,
then, that case does not at all influence today’s outcome.
                  GUIDIVILLE BAND v. NGV GAMING                  7535
nomic affairs” (see S. REP. NO. 106-150, at 2 (1999), adding
that “[t]he first and principal need then was that [Indians]
should be shielded alike from their own improvidence and the
spoliation of others”). But in 1934 Congress shifted the focus
of its Indian policy by enacting the Indian Reorganization Act
(“Reorganization Act”) that “represented a fundamental break
with [the] policy” underlying Section 81 (see id.). As the 1999
Senate Report, id. (alteration in original and internal quotation
marks omitted) went on to say:

       The intent and purpose of the [Reorganization Act]
       was to develop the initiative destroyed by a century
       of oppression and paternalism . . . . [It] seeks to get
       away from the bureaucratic control of the Indian
       Department, and it seeks further to give the Indians
       the control of their own affairs and of their own
       property.

   Following passage of the Reorganization Act, administra-
tive agencies and courts were left “with the difficult task of
reconciling an 1872 statute that sought to protect Indian tribes
by imposing extensive federal oversight with a 1934 Act
intended to disentangle the tribes from official bureaucracy”
(id. (internal citation omitted)). Fortunately Congress simpli-
fied that task in 1999 when it amended Section 81. Those
amendments—which, among other changes, replaced the term
“relative to” Indian lands with “encumbers” Indian lands16 —
“ensure[d] that Indian tribes will be able to engage in a wide
array of commercial transactions without having to submit
those agreements to the BIA as a precaution” (id. at 9; see
also id., expressly noting that the 1999 amendment “elimi-
nated the overly-broad scope” of Section 81).

   [9] Put simply, the tables have turned since 1872. Although
at an earlier point courts may have been able to use the Black-
feet Tribe presumption to justify a nonliteral expansion of
  16
    See n. 15.
7536            GUIDIVILLE BAND v. NGV GAMING
Section 81, certainly the most recent amendment to that stat-
ute makes clear that Congress now considers self-
determination—not paternalism—to be in the Indians’ best
interest. And that goal is more directly advanced by a literal
rather than a nonliteral reading of Section 81.

   D.   Language of the Lease and Mendocino County
                        Property

   With all of that said, we turn now to the actual language of
the Lease to demonstrate that under the literal present-tense
reading of Section 81, it does not apply to the only lands that
the United States already held in trust for the Tribe’s benefit
at the time the Tribe-NGV agreement was entered into. Tak-
ing issue with our addressing the specifics of the contract, the
dissent argues that this is a task best left in the first instance
to the district court, particularly when “parol evidence” is
involved. But our reading is based on the words of the con-
tract itself (see n.17), and contract interpretation has always
been a matter of pure law that needs no preliminary screening
by the district court. And our reference to the contract directly
addresses Harrah’s argument—indeed the primary one that it
has raised on appeal—that the Lease implicates the Mendo-
cino County, California property already held in trust for the
Tribe. Because it is exceedingly plain that neither the Tribe
nor NGV ever contemplated that the document would extend
to the Mendocino County lands, we hold that the agreement
binding those two parties was valid without the Secretary’s
approval.

   It is of course true that the Tribe’s 44 acres in Mendocino
County qualify as “Indian lands” as that term is defined by
Section 81. And it is equally true that such acreage was taken
into trust by the United States for the benefit of the Tribe in
1999, well before NGV and the Tribe formalized their busi-
ness relationship. But the Mendocino County land issue is
really a red herring: Both the unambiguous language of the
Lease and, at least as importantly, the equally unambiguous
               GUIDIVILLE BAND v. NGV GAMING                 7537
facts as to that property itself confirm that the Mendocino
County lands are not at all within the purview of the parties’
transaction and were therefore not even arguably encumbered
by the Lease.

   [10] Under the terms of the Lease, NGV and the Tribe part-
nered not to develop a casino on existing tribal land, but
because the Tribe “require[d] assistance . . . acquiring real
property and petitioning the United States to accept title to
such property in trust for the benefit of the Tribe” (emphasis
added). With the Mendocino County property already in hand
—and having been accepted into trust—when the parties
entered into their deal, the Lease cannot fairly be read as pro-
viding (or even contemplating) that such property would or
could become the eventual site of the casino. It would make
no sense at all, of course, to speak of “acquiring” already-
owned real property. And it must be remembered that the
Mendocino County property had been acquired expressly for
residential development, not for commercial development.
Nothing suggests that such purpose had changed in any
respect either before or at the time that NGV and the Tribe
entered into their agreement.

  Additional language from the Lease further supports our
conclusion. According to the Lease’s “Master Definitions
List,” “Trust Lands” is described as:

    Property held by the United States in Trust for the
    benefit of the Tribe.

“Property” is in turn defined in terms of the future, not the
present (emphasis added):

    The real property upon which the Structure will be
    constructed by Developer, which at the time of con-
    struction will be titled to the United States in trust
    for the benefit of the Tribe.
7538                GUIDIVILLE BAND v. NGV GAMING
“Structure” is similarly defined as:

       The buildings and improvements constructed and
       installed on the Trust Lands on which the Tribe
       operates the Facility.

And finally, “Facility” is defined as:

       The Structure, equipped and ready for the Tribe to
       conduct Gaming for the public.

   [11] With that definitional chain, the Lease provision
sought to be relied on by Harrah’s cannot reasonably be read
as embracing the Tribe’s acreage in Mendocino County. If
that were to be done, “Property” would not be defined only
in the future tense and “Structure” and “Facility” would not
be defined in terms of a public gaming facility rather than pri-
vate housing. In short, because the Mendocino County prop-
erty was already held in trust and because it had been
specifically slated—and remained slated—for residential
development, that property simply does not come within the
provision of the Lease restricting the Tribe’s ability to alien-
ate “Trust Lands.”17

               E.    Inapplicability of Section 2710

   [12] To this point we have demonstrated in a number of
different ways why Section 81 is inapplicable to the situation
before us. But finally we soldier on to speak far more briefly
to the substantially more attenuated possibility that the par-
  17
     It is worth noting that NGV maintains that a deposition of Sanchez,
which is included in the record, further bolsters its position that the parties
never intended their agreement to cover the Mendocino County property.
On appeal the parties have vigorously disputed whether we should con-
sider such parol evidence in interpreting their agreement. Because of the
clarity of the matters already discussed, we have felt no need to look to
the deposition and, as a result, no need to resolve the parties’ disagreement
over the propriety of parol evidence.
                GUIDIVILLE BAND v. NGV GAMING                7539
ties’ agreement could somehow have violated Section 2710.
As before, that inquiry begins by recourse to the plain statu-
tory language. And by its express terms, Section 2710 per-
tains only to tribal ordinances or resolutions—not to a tribe’s
contract with a third party—so that nothing in that statute
impairs the validity of the Tribe-NGV agreement.

  Under Section 2710(b)(2)(A)(emphases added) the Chair-
man of the Gaming Commission:

    shall approve any tribal ordinance or resolution con-
    cerning the conduct, or regulation of class II gaming
    on the Indian lands within the tribe’s jurisdiction if
    such ordinance or resolution provides that —

         (A) . . . . the Indian tribe will have the sole
         proprietary interest and responsibility for
         the conduct of any gaming activity . . .

   On appeal Harrah’s argues that NGV’s agreement with the
Tribe violated that statute because the terms of the Lease
allowed NGV to assume the dominant equity interest in the
eventual gaming facility. That arrangement, it contends, is
concomitant to NGV having a “sole proprietary interest” in
the gaming facility.

   [13] But Section 2710’s plain language refutes that notion
because Harrah’s conclusion rests on a false premise. Here
there was no “tribal ordinance or resolution” (note that the
statute’s implementing regulations likewise refer to “gaming
ordinance or resolution adopted by a tribe” (see 25 C.F.R.
§ 522.1 (emphasis added)). That language simply does not
speak to contracts entered into between a tribe and a third
party (as contrasted with tribal legislation or regulations offi-
cially enacted by the tribe). That reading is further fortified by
the sharp contrast between Section 2710 and Section 2705(a),
a related statute that speaks of both “tribal ordinances or reso-
lutions” and a specific type of contract that a tribe may enter
7540                GUIDIVILLE BAND v. NGV GAMING
into with a third party.18 Thus the Tribe’s agreement with
NGV cannot be said to violate Section 2710 either.19

                             V.   Conclusion

   We first vacate the judgment in the Tribe’s declaratory
judgment action against NGV and dismiss that action for lack
of subject matter jurisdiction. As the Tribe’s contracts with
both NGV and Harrah’s have been rescinded, there is no
“case or controversy” at issue as between the Tribe and NGV,
leaving us with no federal jurisdiction on that score.

   [14] We further hold that Section 81 requires approval by
the Secretary as to only those contracts that implicate lands
already held in trust by the United States for an Indian tribe.
Because the contract between the Tribe and NGV did not
implicate such lands, it remained valid without such approval.
We further hold that the same contract also did not violate
Section 2710, for that statute pertains only to tribal ordinances
and resolutions, not to a tribe’s agreement with a third party.
All of those things being true, we reverse the judgment in
Harrah’s favor and remand for resolution of NGV’s action
against Harrah’s on the merits.
  18
    Under Sections 2705(a)(3) and (4)(emphases added) the Chairman of
the Gaming Commission can:
       (3) approve tribal ordinances or resolutions regulating class II
       gaming and class III gaming as provided in section 2710 of this
       title; and
      (4) approve management contracts for class II gaming and class
      III gaming as provided in sections 2710(d)(9) and 2711 of this
      title.
   19
      We note that nothing in the record indicates that the Tribe forwarded
a tribal ordinance or resolution to the Gaming Commission for it to
review, or even that any such ordinance or resolution existed. Instead the
record reflects that the Tribe’s chairperson forwarded the Lease and Cash
Management Agreement to the agency.
               GUIDIVILLE BAND v. NGV GAMING                7541
  VACATED IN PART; REVERSED AND REMANDED
IN PART.



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. § 81. Second, because of its
error in the application of 25 U.S.C. § 81, the majority is
thereafter forced to reverse the district court by (1) interpret-
ing 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 declara-
tory relief filed by the Tribe as moot.

                               I.

   “The doctrine that the federal government stands in a fidu-
ciary 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 govern-
ment owes a special duty analogous to those of a trustee.” Id.
(citing Heckman v. United States, 224 U.S. 413 (1912); Semi-
nole 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
7542            GUIDIVILLE BAND v. NGV GAMING
(N.D. Cal. 1973)). This is a “unique relationship between
Indians and the federal government, a relationship that is
reflected in hundreds of cases and is further made obvious by
the fact that one bulging volume of the U. S. Code pertains
only to Indians.” Id. (quoting White v. Califano, 437 F. Supp.
543, 555 (D.S. D. 1977), aff’d, 581 F.2d 697 (8th Cir. 1978)).

   Consistent with this special duty, Congress enacted 25
U.S.C. § 81 “to protect the Indians from improvident and
unconscionable contracts” in 1872. In re Sanborn, 148 U.S.
222, 227 (1893). Since that time, Congress has amended § 81,
removing provisions that were antiquated and unnecessary.
See H.R. Rep. 106-501. The present language of § 81(b)
states:

    No agreement or contract with an Indian tribe that
    encumbers Indian lands for a period of 7 or more
    years shall be valid unless that agreement or contract
    bears the approval of the Secretary of the Interior or
    a designee of the Secretary.

The term “Indian lands” is defined by § 81(a) as: “lands the
title to which is held by the United States in trust for an Indian
tribe.” 25 U.S.C. § 81(a). (hereafter referred to as “trust
lands”). To decide this case, we must apply § 81 to the par-
ties’ contracts.

   “In interpreting a statute, we look first to the plain language
of the statute, construing the provisions of the entire law,
including its object and policy, to ascertain the intent of Con-
gress.” United States v. Middleton, 231 F.3d 1207, 1210 (9th
Cir. 2000) (quoting United States v. Mohrbacher, 182 F.3d
1041, 1048 (9th Cir. 1999)). When a statutory term is unde-
fined, we endeavor to give that term its ordinary meaning. Id.
We are instructed to avoid, if possible, an interpretation that
would produce “an absurd and unjust result which Congress
could not have intended.” Id. (quoting Clinton v. City of New
               GUIDIVILLE BAND v. NGV GAMING               7543
York, 524 U.S. 417, 429, 118 S.Ct. 2091, 141 L.Ed.2d 393
(1998)).

   In the Dictionary Act, Congress mandated that, in deter-
mining the meaning of any Act of Congress, “unless the con-
text indicates otherwise . . . words used in the present tense
include the future as well as the present.” 1 U.S.C. § 1. Thus,
when interpreting the definition of “Indian lands” in § 81, we
must read the words “which is held in trust . . .” to also
include land “which will be held in trust . . . .” Id.

   Recent Congressional discussion of the purpose of § 81
supports such a reading. Section 81 “is intended to protect
Indians from improvident contracts and is concerned primar-
ily with federal control over contracts between Indian tribes
or individual Indians and non-Indians.” See H.R. Rep. 106-
501. Congress clearly does not want Indian tribes to enter into
contracts that would encumber their trust lands for seven
years or more, without the added protection of the Secretary
of the Interior’s approval. Limiting § 81’s definition of Indian
lands to only the present tense — land which “is held in trust”
— undermines the protection § 81 is intended to provide to
the Indian tribes. Under the majority’s reading of § 81, parties
can easily circumvent the statute. The parties, fully intending
that their contract will encumber Indian lands for more than
seven years, can simply execute their contract before the lands
are conveyed into trust. Because such a contract would not
pertain to land presently held in trust by the United States for
an Indian tribe, the contract would not require the approval of
the Secretary of the Interior. This would be true even though
the parties always intended that the land would be held in
trust by the United States for the Indian tribe and even if the
contract contained an explicit provision requiring that the land
be held in trust by the United States for the Indian tribe.

  Longstanding Supreme Court and Ninth Circuit precedent
concerning the regulation of Indian land transactions also sup-
ports reading § 81 to include the future tense. The United
7544           GUIDIVILLE BAND v. NGV GAMING
States Supreme Court has made clear that “the canons of con-
struction applicable to Indian law are rooted in the unique
trust relationship between the United States and the Indians.”
Oneida County v. Oneida Indian Nation, 470 U.S. 226, 247
(1985). One of those cannons of construction is that federal
statutes relating to Indian tribes must be “construed liberally
in favor of the Indians.” Montana v. Blackfeet Tribe of Indi-
ans, 471 U.S. 759, 766 (1985). This court has previously writ-
ten, “Until Congress repeals or amends the Indian . . . statutes
. . . we must give them a ‘sweep as broad as [their] language’
and interpret them in light of the intent of the Congress that
enacted them.” A.K. Management Co. v. San Manuel Band of
Mission Indians, 789 F.2d 785, 787 (9th Cir. 1986) (quoting
Central Machinery Co. v. Arizona State Tax Commission, 448
U.S. 160, 166 (1980)). Reading § 81 to include the future
tense furthers both the intent of Congress and the direction of
the Supreme Court that we must construe statutes broadly in
favor of the Indian tribes.

   Applying the plain language of § 81 to the contract between
the Tribe and NGV is a straightforward exercise. The Tribe
and NGV entered into contracts regarding lands which are or
will be held in trust for seven or more years. Based upon the
provisions of § 81, the Tribe applied for approval of these
contracts. However, the Secretary of the Interior did not
approve the contracts. Thus, under the plain language of § 81,
they are invalid. 25 U.S.C. § 81. Because the contracts are
invalid, NGV cannot establish the first element of its tortious
interference cause of action against Harrah’s. Quelimane Co.
v. Stewart Title Guaranty Co., 960 P.2d 513, 530 (Cal. 1998)
(stating that the first element of an intentional interference
with contractual relations action is “a valid contract between
plaintiff and a third party”).

   To contradict this clear and unambiguous reading of § 81,
the majority first declares that the Dictionary Act only applies
when a statute is ambiguous. However, the majority cites no
authority for this argument, because there is none. Congress
               GUIDIVILLE BAND v. NGV GAMING               7545
enacted the Dictionary Act and installed it as its first act, 1
U.S.C. § 1, controlling the meaning of the words of any and
all Acts of Congress. Nothing in the United States Code or
controlling precedent limits the Dictionary Act’s application.

   Understanding the weakness of their argument, the majority
next seizes upon the language of the Dictionary Act and
argues that the context of the § 81 precludes the use of the
future tense. Context is “the text of the Act of Congress sur-
rounding the word at issue, or the texts of other related con-
gressional Acts.” Rowland v. California Men’s Colony, 506
U.S. 194, 199 (1993). However, the words of § 81 do not pro-
vide a different context. There is no finding in the majority
opinion or arguments in the briefs of the parties suggesting
that the words of the statute surrounding “which is held” pro-
vide a different context. Instead, the majority suggests that 25
U.S.C. §§ 465, 2710, and 2719 (other congressional acts) pro-
vide the “context” to reject reading § 81 to include the future
tense, as mandated by the Dictionary Act. Again, the majority
cites no Supreme Court or circuit precedent to buttress their
argument that these sections were enacted to change the con-
text of § 81.

   The sections cited by the majority provide additional pro-
tections to the Indian tribes and their lands, but provide no
support for the proposition that the Dictionary Act should not
apply to § 81. However, Congress can pass more than one Act
to assist Indian tribes. Section 81 applies to all contracts and
agreements with Indian tribes which encumber Indian trust
lands. Under § 81, the Secretary must determine: (1) whether
the contract will encumber presently held or to be acquired
trust land for a period of seven or more years; and (2) whether
the contract is improvident and unconscionable. 25 U.S.C.
§ 81. None of the language in sections 465, 2710, or 2719
even addresses contracts encumbering Indian lands, much less
provides a context suggesting that § 81 can include only the
present tense.
7546            GUIDIVILLE BAND v. NGV GAMING
   Section 465 authorizes the Secretary “to acquire . . . any
interest in lands, water rights, or surface rights to lands within
or without existing reservations . . . for the purposes of pro-
viding land for Indians.” 25 U.S.C. § 465. Nothing in that sec-
tion even remotely addresses determining the fairness of
contracts, between Indian tribes and some other party, which
will encumber Indian lands. Id.; see also 25 C.F.R. §§ 151.10,
151.11. Section 2701 et seq., which includes § 2710, applies
to the approval of gaming contracts, not contracts encumber-
ing Indian lands. Additionally, these sections use a different
definition of the term “Indian Lands” than does § 81. Indian
lands under these sections includes “all lands within the limits
of any Indian reservation and any lands to which title is either
held in trust by the United States . . . or held by any Indian
tribe or individual subject to restrictions by the United States
. . . over which an Indian tribe exercises governmental
power.” 25 U.S.C. § 2703(4) (emphasis added). Section
 2719(b)(1)(A) is likewise limited to gaming contracts, and
requires the Secretary to determine whether a gaming estab-
lishment would be in the best interest of the Indian tribe and
whether it would be detrimental to the surrounding commu-
nity. 25 U.S.C. § 2719(b)(1)(A).

   The majority next argues that Congress could have drafted
§ 81 to include the future tense, if that were its intent. How-
ever, the Dictionary Act provides that all present tense words
used in Acts of Congress include the future tense. See 1
U.S.C. § 1. Because we presume that Congress is knowledge-
able about existing law when it passes new legislation, we
must presume that Congress was aware of the Dictionary Act
when it enacted § 81. See Miles v. Apex Marine Corp., 498
U.S. 19, 32 (1990). Thus, there is simply no reason for Con-
gress to draft a statute with language in both present and
future tense. In fact, drafting in this way would be illogical
given that the Dictionary Act already addresses the future
tense in “any Act of Congress.” 1 U.S.C. § 1.

  The majority’s opinion also implies that the statutory lan-
guage in the Dictionary Act is hoary, because the Supreme
               GUIDIVILLE BAND v. NGV GAMING               7547
Court has only applied the Dictionary Act to illustrate the
meaning of the word “person.” Acts of Congress, however,
are not presumed invalid until declared so by the Supreme
Court. Simply because the Supreme Court has not yet
addressed this issue does not affect the application of the Dic-
tionary Act to the facts of this case.

   Lastly, the majority relies on what it terms a “more modern
attitude toward Indian tribes” to justify its reading of § 81.
However, our job is not to legislate to reflect modern atti-
tudes. Our job is, instead to interpret statutes as they have
been written. It is Congress’s place, not ours, to decide
whether modern attitudes dictate that § 81 be repealed (as this
opinion does). Until the time that Congress does so, we are
bound by the current language of § 81.

   The contracts between the Tribe and NGV are subject to
§ 81 and require approval by the Secretary of the Interior.
Because the contracts were not approved, the contracts were
invalid and unenforceable. NGV’s tortious interference cause
of action therefore fails and must be dismissed.

                              II.

   The Tribe and Harrah’s filed summary judgment motions,
asserting that the language of the contracts between the Tribe
and NGV encumbered presently owned trust lands thereby
requiring Secretary approval under § 81. NGV opposed the
motion, also citing the language of the contracts. Thereafter,
NGV requested permission to file a surreply to provide the
court with additional evidence in support of its position that
the contracts did not encumber trust lands. Both Harrah’s and
the Tribe opposed the motion and, alternatively, requested
that they be able to respond to NGV’s surreply, if it were
allowed. The district court refused to allow the surreply.
However in its refusal, the district court noted, “The Court has
reviewed the surreply filed by NGV. The Court finds that
NGV has submitted evidence concerning issues of fact.
7548            GUIDIVILLE BAND v. NGV GAMING
Because the Court bases its decision on an issue of law, it
finds it unnecessary to address the contentions contained in
the surreply.” Guidiville Band of Pomo Indians v. NGV Gam-
ing Ltd., 2005 WL 5503031 at 1, n.1 (N.D. Cal. 2005). Given
these circumstances, it is error for this court to pick and
choose what parol evidence it will use in reversing the district
court’s decision on an issue that the district court did not even
address. Instead, we should remand this issue to the district
court so that it may make a factual finding regarding whether
the terms of the contracts between the Tribe and NGV are
ambiguous.

                               A.

   In interpreting a contract under California law, a court must
first look to the plain meaning of the contract’s language. See
Cal. Civ. Code §§ 1638, 1644. “When a contract is reduced
to writing, the intention of the parties is to be ascertained from
the writing alone, if possible[.]” Cal. Civ. Code § 1639. Cali-
fornia law holds that “even if the trial court personally finds
the document not to be ambiguous, it should preliminarily
consider all credible evidence to ascertain the intent of the
parties.” Appleton v. Waessil, 32 Cal. Rptr. 2d 676, 678 (Cal.
Ct. App. 1994). In such cases, the district court engages in a
two-step process: “First, the court provisionally receives
(without actually admitting) all credible evidence concerning
the parties’ intentions to determine ‘ambiguity,’ i.e., whether
the language is ‘reasonably susceptible’ to the interpretation
urged by a party. If in light of the extrinsic evidence the court
decides the language is ‘reasonably susceptible’ to the inter-
pretation urged, the extrinsic evidence is then admitted to aid
in the second step-interpreting the contract.” Winet v. Price,
6 Cal. Rptr. 2d 554, 557 (Cal. Ct. App. 1992).

   The district court had no opportunity to interpret the lan-
guage of these contracts. Instead, it decided a question of law
regarding § 81. Because the district court acknowledged that
factual issues exist with regard to the contracts’ interpretation,
                GUIDIVILLE BAND v. NGV GAMING                7549
the district court is in a better position to “make these deter-
minations in the first instance.” See Celotex Corp. v. Catrett,
477 U.S. 317, 327 (1986).

   Notwithstanding that the district court never reached the
analysis set forth in Winet, the majority finds that the lan-
guage of the Tribe/NGV Lease is unambiguous. However, in
doing so, the majority picks and chooses what parol evidence
it will consider rather than remanding to the district court so
that it may determine, in the first instance, whether the terms
of the contract are ambiguous. For example, the majority uses
parol evidence to (1) ascertain that neither of the parties ever
contemplated that the Lease would extend to already owned
trust land (the Medocino County property); and (2) state that
“equally unambiguous facts as to that property itself confirm
that the Medocino County lands are not at all within the pur-
view of the parties’ transaction.” The majority also cites to the
Bureau of Indian Affairs letters to buttress its finding regard-
ing the language of the Lease.

   I reject the idea that appellate courts may rely upon parol
evidence which was not fully presented by the parties to the
district court in order to reverse the district court. An appel-
late court’s application of parol evidence to interpret contrac-
tual terms is not a substitute for a full hearing before the
district court in which the district court can consider all of the
evidence. This is particularly true under California law, which
requires a district court to first make a finding about whether
the contract is ambiguous and allows the admission of parol
evidence only if the contract is, in fact, ambiguous. See Winet,
6 Cal. Rptr. 2d at 557. If the contract is unambiguous, an
appellate court should interpret the contract based on its lan-
guage alone. Cal. Civ. Code § 1639. It is not appropriate for
appellate courts to make a determination in the first instance
about whether the contract is ambiguous and it is even less
appropriate for appellate courts to determine what parol evi-
dence, if any, to consider. Therefore, I would remand to the
district court for it to make a determination in the first
7550            GUIDIVILLE BAND v. NGV GAMING
instance as to whether the contracts between the Tribe and
NGV are ambiguous, and, if so, what parol evidence to admit.
This is consistent with the process provided for by California
law. See Winet, 6 Cal. Rptr. 2d at 557; Pacific Gas & E. Co.
v. G.W. Thomas Drayage etc. Co., 442 P.2d 641, 644 (Cal.
1968) (“The test of admissibility of extrinsic evidence to
explain the meaning of a written instrument is not whether it
appears to the court to be plain and unambiguous on its face,
but whether the offered evidence is relevant to prove a mean-
ing to which the language of the instrument is reasonably sus-
ceptible.”)

                                B.

   The majority also ignores the rules of contract interpreta-
tion in reaching its result. Section 81’s plain language requires
any contract encumbering Indian lands for a period of seven
years or more to get approval. 25 U.S.C. § 1. There is no dis-
pute that the Lease “encumbers” land which the lease defines
as “Trust Lands.” See 25 C.F.R. § 84.002 (“Encumber means
to attach a claim, lien, right of entry or liability to real proper-
ty”). Pursuant to the terms of the Lease, so long as any of the
Tribe’s obligations to NGV remain outstanding, the Tribe
cannot sell, dispose of, lease, assign, sublet, transfer, mort-
gage or encumber all or any part of its title, or interest in or
to the “Trust Lands,” as defined in the parties’ contracts, with-
out the prior written consent of NGV. The Lease also grants
NGV, its agents, employees, and independent contractors a
right of entry on Indian trust lands, with “complete and unre-
stricted access . . . for purposes of developing, installing and
constructing the Structure.” Thus, we must determine whether
the defined term “Trust Lands” used in the Lease encom-
passes Indian lands such that § 81’s approval requirement
would apply.

  In the parties’ Master Definitions List, which applies to
both the Lease and the parties’ other contract, the parties
defined the term “Trust Lands” as “Property held by the
               GUIDIVILLE BAND v. NGV GAMING                7551
United States in Trust for the benefit of the Tribe.” Applying
§ 81 to this definition, the Lease encumbers Indian lands. The
Lease’s definition of “Trust Lands” includes all of the prop-
erty held by the United States in trust for the benefit of the
Tribe, with no exceptions. Thus, even if the majority is cor-
rect that § 81 only applies to lands presently held in trust, the
Lease encumbers such land. Thus, the Lease needed to be
approved by the Secretary of the Interior. 25 U.S.C. § 81(b).
Because it was not, the Lease is invalid.

   The majority attempts to skirt § 81’s approval requirement
by suggesting that the Lease’s definition of “Trust Lands”
only applies to property which will be acquired in the future.
The majority asserts that the sequence in which terms are
defined in the Master Definitions List makes it clear that the
use of the word “Property” in the definition of “Trust Lands”
is limited to the defined term “Property,” which is also
included in the Master Definitions List. Thus, the majority
believes that the term “Trust Lands” includes only the specific
land to be acquired for construction of the casino. The major-
ity relies upon the fact that the word “Property” is capitalized
in the definition of “Trust Lands,” but ignores the context and
use of the term “Trust Lands” within the contracts themselves.

   It is well settled that a contract should be interpreted so as
to give meaning to each of its provisions. “Since an agree-
ment is interpreted as a whole, it is assumed in the first
instance that no part of it is superfluous.” Brinderson-
Newberg Joint Venture v. Pacific Erectors, Inc., 971 F.2d
272, 278-79 (9th Cir. 1992) (quoting Restatement (Second) of
Contracts § 203(a) cmt. b (1979)). The majority’s reading of
the Lease renders the defined term “Trust Lands” meaning-
less. The defined term “Property” includes “real property
upon which the Structure will be constructed by Developer,
which at the time of construction will be titled to the United
States in trust for the benefit of the Tribe.” This term already
requires that the land acquired for the casino be held in trust
by the United States for the Tribe. The defined term “Trust
7552            GUIDIVILLE BAND v. NGV GAMING
Lands” includes “Property held by the United States in Trust
for the benefit of the Tribe.” If this definition only refers to
“Property” as defined by the Master Definitions List, the two
terms mean exactly the same thing. Thus, the term “Trust
Lands” would be superfluous because it would not include
any land not already covered by the definition of “Property.”

   Additionally, contracts should be interpreted to be “inter-
nally consistent.” Brobeck, Phleger & Harrison v. Telex
Corp., 602 F.2d 866, 872 (9th Cir. 1979) (applying California
law). When the contract is unambiguous, the express language
is to govern. Oracle Corp. v. Falotti, 319 F.3d 1106, 1112
(9th Cir. 2003) (citing California law).

   The majority reads only the Master Definitions List to
determine what the term “Trust Lands” means, and ignores
the plain language of the whole Lease, thereby making it “in-
ternally inconsistent.” First, the majority overlooks the fact
that the first letter of every definition in the Master Defini-
tions List is capitalized. Thus, the fact that “Property” is capi-
talized in the definition of “Trust Lands” has no significance.
Neither the Lease nor the parties’ other contract has language
indicating that the word “Property,” the first word of the defi-
nition of “Trust Lands,” refers only to the term as defined pre-
viously in the contracts. At best, the majority’s reading of this
language suggests an ambiguity in the contracts. An ambigu-
ous contract cannot be interpreted without determining the
intent of the parties. If this is the case, the matter should be
remanded to the district court for such a determination.

   Second, the majority ignores the remainder of the Lease,
which makes clear that the term “Trust Lands” is not limited
to property to be acquired in the future, and thus triggers the
application of § 81. For example, section 14.1 of the Lease
provides that the Tribe represents and warrants:

    F. There are no judgments filed or suits, actions, or
    proceedings pending, or to the knowledge of Lessee,
               GUIDIVILLE BAND v. NGV GAMING               7553
    threatened against or affecting the Lessee or the
    Trust Lands or by any court, arbitrator, administra-
    tive agency, or other Governmental Authority which,
    if adversely determined, would materially and
    adversely affect the construction, development, or
    operation of the facility as contemplated in the
    Transaction Documents.

   It would be internally inconsistent to apply the majority’s
definition of “Trust Lands” to this provision. If the words
“Trust Lands” refer only to yet to be acquired property on
which the casino will be built, this paragraph is superfluous.
The Tribe could not realistically make any of the required rep-
resentations or warranties on land it had not yet acquired.
Thus, at the time the Tribe and NGV entered into their con-
tracts, section 14.1 of the Lease would have been meaning-
less.

   Applying basic rules of statutory interpretation, the Lease
clearly contemplates that the definition of “Trust Lands”
includes any trust land of the Tribe, not just the property to
be acquired for the Tribe by NGV in the future. Thus, the par-
ties’ contracts were undisputedly subject to approval by the
Secretary of the Interior under § 81.

                              III.

   The Tribe also brought a declaratory judgment action to
determine the validity of its contracts with NGV. The district
court found that (1) it had subject matter jurisdiction over the
declaratory relief action; (2) § 81 applied to the to-be-
acquired trust lands; and (3) because the Secretary of the Inte-
rior did not approve the contracts as required under § 81, the
contracts were invalid. NGV appealed that decision.

  As noted in the majority opinion, the Tribe entered into
contracts with Harrah’s after entering into the contracts with
NGV. In the Harrah’s/Tribe contracts, the Tribe specifically
7554           GUIDIVILLE BAND v. NGV GAMING
indemnified Harrah’s against any lawsuit by NGV. While the
appeal was pending, the Tribe and Harrah’s terminated their
contracts and entered into a settlement agreement, wherein the
Tribe agreed to continue to indemnify Harrah’s against claims
made by NGV. Based upon the termination and settlement,
NGV on appeal asserts an additional argument, alleging that
the declaratory judgment is moot (no case or controversy
exists) because of the termination of the contracts. The major-
ity agrees, because (1) the contracts between the Tribe and
Harrah’s were terminated; and (2) the underlying contracts
between the Tribe and Harrah’s were invalid because they
were never approved. Although the Tribe entered into a settle-
ment agreement, which required the Tribe to continue to
indemnify Harrah’s, the majority found that the settlement
agreement was void for lack of consideration. I again disagree
with the majority.

   The parities dispute whether the Tribe’s obligation to
indemnify Harrah’s survived the termination of the contracts,
and therefore whether a case and controversy existed or con-
tinues to exist. Both the Management Agreement and the
Development Agreement between Harrah’s and the Tribe
contained an indemnification clause. The clause states:

    Indemnity. To the fullest extent permitted by law,
    the Tribe shall indemnify Developer and its Affili-
    ates against any claims relating to the development,
    management, or operation of the Casino of the Tribe
    by any person, . . . with which or whom the Tribe
    has had any business relationship, association, or
    dealing prior to the date hereof. This indemnification
    shall survive the termination of this Agreement for
    a period of three (3) years.

In addition, both of the contracts contained a severability
clause stating in part:

    Severability. If any of the material terms and pro-
    visions hereof shall be held invalid or unenforceable,
                GUIDIVILLE BAND v. NGV GAMING                 7555
    such invalidity or unenforceability shall not affect
    any of the other terms or provisions hereof.

   Based upon the language in foregoing clauses in the con-
tracts, there is a question of fact as to whether the termination
of the contracts ended the Tribe’s obligations to indemnify
Harrah’s. Even if the language in the contracts is not applica-
ble, California law provides that:

    the compromise of a doubtful claim asserted and
    maintained in good faith constitutes a sufficient con-
    sideration for a new promise, even though it may
    ultimately be found that the claimant could not have
    prevailed. This is true whether the claim be in suit or
    not . . .

Union Collection Co. v. Buckman, 88 P. 708, 710 (Cal. 1907).

   California law further provides that partially illegal con-
tracts may be upheld if the illegal portion is severable from
the part which is legal. Mailand v. Burckle, 572 P.2d 1142,
1152 (Cal. 1978) (severing a contract void under the Cart-
wright Act). The issue of “whether a contract is entire or
whether its various stipulations are to be regarded as sever-
able is a question of construction.” Sterling v. Gregory, 85 P.
305, 306 (Cal. 1906). Thus, to determine whether provisions
of otherwise illegal contracts have continued vitality, a court
must examine “the language and subject-matter of the con-
tract . . . according to the intention of the parties.” Pac. Wharf
& Storage Co. v. Standard Am. Dredging Co., 192 P. 847,
849 (Cal. 1920). In determining the parties’ intent, the court
must consider “all the circumstances surrounding the making
of the contract.” Sterling, 85 P. at 306.

   Because issues of fact have been raised with regard to the
effect of the settlement and the validity of the Tribe/Harrah’s
contracts, “we must remand to the district court to conduct, as
necessary, further evidentiary proceedings to resolve those
7556         GUIDIVILLE BAND v. NGV GAMING
issues.” Bank of New York v. Fremont Gen. Corp., 523 F.3d
902, 910 (9th Cir. 2008).
