State of Arizona v. Tohono O'Odham Nation

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STATE OF ARIZONA; SALT RIVER No. 13-16517
PIMA-MARICOPA INDIAN
COMMUNITY, D.C. No.
Plaintiffs, 2:11-cv-00296-
DGC
and

GILA RIVER INDIAN COMMUNITY,
Plaintiff-Appellant,

v.

TOHONO O’ODHAM NATION,
Defendant-Appellee.
2 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION

STATE OF ARIZONA, No. 13-16519
Plaintiff-Appellant,
D.C. No.
and 2:11-cv-00296-
DGC
GILA RIVER INDIAN COMMUNITY;
SALT RIVER PIMA-MARICOPA
INDIAN COMMUNITY,
Plaintiffs,

v.

TOHONO O’ODHAM NATION,
Defendant-Appellee.

STATE OF ARIZONA; GILA RIVER No. 13-16520
INDIAN COMMUNITY,
Plaintiffs, D.C. No.
2:11-cv-00296-
and DGC

SALT RIVER PIMA-MARICOPA
INDIAN COMMUNITY, OPINION
Plaintiff-Appellant,

v.

TOHONO O’ODHAM NATION,
Defendant-Appellee.
 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION 3

Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding

Argued and Submitted
December 7, 2015—San Francisco, California

Filed March 29, 2016

Before: Diarmuid F. O’Scannlain, Barry G. Silverman,
and Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea

SUMMARY*

Indian Gaming Regulatory Act

Affirming the district court’s judgment, the panel held
that the Tohono O’odham Nation’s plan to build a casino and
conduct Class III gaming on a certain parcel of land did not
violate a gaming compact between the Nation and the State
of Arizona.

The Compact expressly authorizes Class III gaming (table
card games and slot machines) on the “Indian Lands” of the
Nation. The Compact defines “Indian Lands” as lands
defined in 25 U.S.C. § 2703(4)(A) and (B) and subject to the
provisions of 25 U.S.C. § 2719. Section 2719 provides that

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION

although Class III gaming is generally barred on land taken
into trust after the effective date of the Indian Gaming and
Regulatory Act (“IGRA”), that bar does not apply to land
taken into trust as part of a settlement of a land claim.

After the Compact was approved, the Nation purchased
land in Glendale, Arizona, with settlement funds it had
acquired under the Gila Bend Indian Reservation Lands
Replacement Act (“LRA”) after reservation lands were
destroyed in flooding. The United States took a portion of the
Glendale-area land, known as “Parcel 2,” into trust for the
Nation pursuant to the LRA.

Affirming the district court’s summary judgment, the
panel held that the land acquired and taken into trust pursuant
to the LRA was land taken into trust as part of a settlement of
a land claim under IGRA § 2719, and thus IGRA did not bar
the Nation from gaming on Parcel 2. The panel also affirmed
the district court’s summary judgment in favor of the Nation
on breach of Compact claims, because the Compact
specifically authorizes Class III gaming on Indian lands that
qualify for gaming under IGRA § 2719. In addition, the
panel affirmed the district court’s ruling that tribal sovereign
immunity barred non-Compact-based claims for promissory
estoppel, fraud in the inducement, and material
misrepresentation.

COUNSEL

Pratik A. Shah (argued), Merrill C. Godfrey, Z.W. Julius
Chen, and John B. Capehart, Akin Gump Strauss Hauer &
Feld LLP, Washington, D.C., for Plaintiff-Appellant Gila
River Indian Community.
 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION 5

Mary R. O’Grady, Shane M. Ham, and Grace E. Rebling,
Osborn Maledon, P.A., Phoenix, Arizona, for Plaintiff-
Appellant Salt River Pima-Maricopa Indian Community.

Robert L. Ellman (argued), Solicitor General, Thomas C.
Horne, Attorney General, and Michael Tryon, Assistant
Attorney General, Arizona Attorney General’s Office,
Phoenix, Arizona, for Plaintiff-Appellant State of Arizona.

Seth P. Waxman (argued), Danielle Spinelli, Kelly P. Dunbar,
Sonya L. Lebsack, and Adam Klein, Wilmer Cutler Pickering
Hale & Dorr LLP, Washington, D.C.; Jonathan Jantzen,
Attorney General, Laura Berglan, Deputy Attorney General,
Tohono O’odham Nation Attorney General’s Office, Sells,
Arizona, for Defendant-Appellee Tohono O’odham Nation.

OPINION

BEA, Circuit Judge:

This appeal requires us to consider whether sophisticated,
represented parties really meant what they wrote in a gaming
compact that was duly executed after years of tedious
negotiations. Like the district court, we hold the parties to
their words, and affirm the district court’s orders in favor of
the Tohono O’odham Nation.

I.

In 2002, the Tohono O’odham Nation (“the Nation”) and
the State of Arizona executed a gaming compact (“the
Compact”) pursuant to the federal Indian Gaming Regulatory
Act (“IGRA”), 25 U.S.C. §§ 2701–2721. The Compact
6 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION

expressly authorizes Class III gaming1 on the “Indian Lands”
of the Nation. The Compact defines “Indian Lands” as “lands
defined in 25 U.S.C. § 2703(4)(A) and (B),2 subject to the
provisions of 25 U.S.C. § 2719.” In turn, § 2719 of IGRA
provides that although Class III gaming is generally barred on
land taken into trust after IGRA’s effective date (October 17,
1988), that bar does not apply to land “taken into trust as part
of . . . a settlement of a land claim.” 25 U.S.C.
§ 2719(b)(1)(B). Additionally, the Compact contains an
integration clause, which provides that the Compact “contains
the entire agreement of the parties with respect to matters
covered by this Compact and no other statement, agreement,
or promise made by any party, officer, or agent of any party
shall be valid or binding.”

After the Compact was approved by the Secretary of the
Interior and became effective in 2003, the Nation purchased
an unincorporated parcel of land within the outer boundaries
of Glendale, Arizona, pursuant to federal Gila Bend Indian
Reservation Lands Replacement Act (“LRA”). Congress
enacted the LRA in 1986 after continuous heavy flooding
caused by a federally-constructed dam rendered over 9,000
acres of the Nation’s reservation lands, which it had used
principally for agriculture, economically useless. The LRA
gave the Nation $30 million in “settlement funds” to purchase
replacement reservation lands, provided the Nation
“assign[ed] to the United States all right, title, and interest of

1
Class III gaming includes table card games, such as blackjack, and slot
machines. See 25 U.S.C. § 2703(7)–(8).
2
Section 2703(4) defines “Indian lands” as “all lands within the limits
of any Indian reservation; and any lands title to which is . . . held in trust
by the United States for the benefit of any Indian tribe.” 25 U.S.C.
§ 2703(4).
 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION 7

the Tribe in nine thousand eight hundred and eighty acres of
land within the Gila Bend Indian Reservation” and
“execute[d] a waiver and release” “of any and all claims of
water rights or injuries to land or water rights . . . with respect
to the lands of the Gila Bend Indian Reservation from time
immemorial to the date of the execution by the Tribe of such
a waiver.” In 1987, the Nation entered into a written
agreement with the United States pursuant to the LRA in
which the Nation waived and released its claims against the
United States and assigned the United States “all right, title
and interest” in 9,880 acres of its destroyed reservation lands
in exchange for $30 million.

On July 7, 2014, the United States took a portion of the
Glendale-area land, known as “Parcel 2,” into trust for the
Nation pursuant to the LRA. We recently affirmed the
legality of the Secretary’s taking of Parcel 2 into trust for the
benefit of the Nation under the LRA. See Nation v. City of
Glendale, 804 F.3d 1292, 1301 (9th Cir. 2015). The Nation
desires to build a casino and conduct Class III gaming on
Parcel 2.

The State of Arizona, the Gila River Indian Community,
and the Salt River Pima-Maricopa Indian community (the
“Plaintiffs”) brought an action in federal district court in
Arizona against the Nation, seeking to enjoin the Nation’s
plan to conduct Class III gaming on Parcel 2. To bring their
action, the Plaintiffs invoked § 2710(d)(7)(A)(ii) of IGRA,
which grants the United States district courts jurisdiction over
“any cause of action initiated by a State or Indian tribe to
enjoin a [C]lass III gaming activity located on Indian lands
and conducted in violation of any Tribal-State compact.”
25 U.S.C. § 2710(d)(7)(A)(ii). Plaintiffs alleged that Class III
gaming on Parcel 2, since it was acquired after IGRA’s
8 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION

effective date (October 17, 1988), would violate the Compact
because the LRA was not a “settlement of a land claim”
under IGRA § 2719, and because the Compact implicitly bars
the Nation from gaming in the Phoenix area. Plaintiffs also
alleged other non-Compact-based claims, including
promissory estoppel, fraud in the inducement, and material
misrepresentation.

After a year of discovery, the parties filed cross-motions
for summary judgment. The district court granted summary
judgment in favor of the Nation because it concluded that
land acquired and taken into trust pursuant to the LRA was
land “taken into trust as part of . . . a settlement of a land
claim” under IGRA § 2719(b)(1)(B)(1), and thus IGRA did
not bar the Nation from gaming on Parcel 2. The court also
granted summary judgment in favor of the Nation on
Plaintiffs’ breach of Compact claims, because the Compact
specifically authorizes Class III gaming on Indian lands that
qualify for gaming under IGRA § 2719. The court also ruled
that the doctrine of tribal sovereign immunity barred the
Plaintiffs’ non-Compact-based claims for promissory
estoppel, fraud in the inducement, and material
misrepresentation, and thus dismissed these claims for lack of
subject matter jurisdiction. Plaintiffs appeal the district
court’s rulings in favor of the Nation.

II

A district court’s grant or denial of summary judgment is
reviewed de novo. Arce v. Douglas, 793 F.3d 968, 975–76
(9th Cir. 2015). “The district court may grant summary
judgment on ‘each claim or defense—or the part of each
claim or defense—on which summary judgment is sought.’
Fed. R. Civ. P. 56(a). Summary judgment is proper where the
 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION 9

pleadings, the discovery and disclosure materials on file, and
any affidavits show that ‘there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.’ Id.; see also Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).” Nation v. City of Glendale,
804 F.3d 1292, 1297 (9th Cir. 2015).

This court reviews “de novo a district court’s dismissal
for lack of subject matter jurisdiction.” Miller v. Wright,
705 F.3d 919, 923 (9th Cir. 2013). “Whether Congress has
abrogated the sovereign immunity of Indian tribes by statute
is a question of statutory interpretation and is reviewed de
novo.” Krystal Energy Co. v. Navajo Nation, 357 F.3d 1055,
1056 (9th Cir. 2004), as amended on denial of reh’g en banc
(Apr. 6, 2004).

A district court’s construction or interpretation of IGRA
is question of law, and is reviewed de novo on appeal. See
United States v. 103 Elec. Gambling Devices, 223 F.3d 1091,
1095 (9th Cir. 2000).

III

A. Interpretation of IGRA § 2719

Plaintiffs argue that the district court erroneously
concluded that land acquired and taken into trust pursuant to
the LRA qualifies as land “taken into trust as part of . . . a
settlement of a land claim” under § 2719(b)(1)(B)(i) of
IGRA. If land acquired and taken into trust pursuant to the
LRA qualifies as land “taken into trust as part of . . . a
settlement of a land claim,” then it is exempt from IGRA’s
prohibition of Class III gaming on Indian lands acquired and
10 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION

taken into trust after October 17, 1988. 25 U.S.C.
§ 2719(b)(1)(B)(i).

To determine if land taken into trust pursuant to the LRA
qualifies as land “taken into trust as part of . . . a settlement
of a land claim” under § 2719(b)(1)(B)(i) of IGRA, we must
first discern the meaning of the term “land claim.” Plaintiffs
argue that a “land claim” “applies to claims to title or
possession of land, not to injuries to land,” and base their
argument on a Department of the Interior (“DOI”) regulation
that defines a “land claim” as follows:

Land claim means any claim by a tribe
concerning the impairment of title or other
real property interest or loss of possession
that:

(1) Arises under the United States
Constitution, Federal common law,
Federal statute or treaty;

(2) Is in conflict with the right, or title or
other real property interest claimed by an
individual or entity (private, public, or
governmental); and

(3) Either accrued on or before October
17, 1988, or involves lands held in trust or
restricted fee for the tribe prior to October
17, 1988.

25 C.F.R. § 292.2.
 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION 11

“We review an agency’s interpretation of a statute it is
charged with administering under the familiar two-step
framework set forth in Chevron, U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d
694 (1984).” Ctr. for Biological Diversity v. Salazar,
695 F.3d 893, 902 (9th Cir. 2012). We must first determine
whether “Congress has directly spoken to the precise question
at issue. If the intent of Congress is clear, that is the end of
the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress.”
Chevron, 467 U.S. at 842–43. “[I]f the statute is silent or
ambiguous with respect to the specific issue,” however, “the
question for the court is whether the agency’s answer is based
on a permissible construction of the statute.” Id. at 843. “If
a statute is ambiguous, and if the implementing agency’s
construction is reasonable, Chevron requires a federal court
to accept the agency’s construction of the statute, even if the
agency’s reading differs from what the court believes is the
best statutory interpretation.” Salazar, 695 F.3d at 902
(quoting Nat’l Cable & Telecomm. Ass’n v. Brand X Internet
Servs., 545 U.S. 967, 980 (2005)).

Thus, we must first determine whether “land claim,” as it
is used in § 2719(b)(1)(B)(i), is ambiguous. “A statute is
ambiguous if it is susceptible to more than one reasonable
interpretation.” Alaska Wilderness League v. EPA, 727 F.3d
934, 938 (9th Cir. 2013). The starting point is the statutory
text. Chevron, 467 U.S. at 842–43. “Land claim” is not
defined in IGRA, and is not used elsewhere in the statute.
See 25 U.S.C. § 2703 (definitions section). The statutory
context and surrounding language do not produce much
12 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION

clarity either.3 “When a statute does not define a term, we
generally interpret that term by employing the ordinary,
contemporary, and common meaning of the words that
Congress used.” United States v. Gallegos, 613 F.3d 1211,
1214 (9th Cir. 2010) (quoting United States v. Iverson,
162 F.3d 1015, 1022 (9th Cir. 1998)). Here, the language
used has a broad, general meaning. See Black’s Law
Dictionary (10th ed. 2014) (defining “claim” as “[t]he
assertion of an existing right; any right to payment or to an
equitable remedy, even if contingent or provisional . . . [a]
demand for money, property, or a legal remedy to which one
asserts a right”). Thus, a “land claim” can be a claim for
impairment to title of land, or as a claim for damage to land.
But a word or phrase is not ambiguous just because it has a
broad general meaning under the generalia verba sunt
generaliter intelligenda4 canon of statutory construction. See
Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (“As
we have said before, the fact that a statute can be applied in
situations not expressly anticipated by Congress does not
demonstrate ambiguity. It demonstrates breadth.” (internal
quotation marks omitted)). We do not find “land claim” to be
ambiguous as used in § 2719(b)(1)(B)(i). As noted above,
“claim” is a broad and general word, and therefore a claim for
impairment to title of land, a claim for dispossession of land,
and a claim for damage to land would all be encompassed by
it. See Scalia & Garner, Reading Law: The Interpretation of

3
The language of the full exception reads: “Subsection (a) of this
section will not apply when lands are taken into trust as part of: (i) a
settlement of a land claim, (ii) the initial reservation of an Indian tribe
acknowledged by the Secretary under the Federal acknowledgment
process, or (iii) the restoration of lands for an Indian tribe that is restored
to Federal recognition.” 25 U.S.C. § 2719(b)(1)(B).
4
“General words are to be understood in a general sense.”
 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION 13

Legal Texts 101 (2012) (“Without some indication to the
contrary, general words . . . are to be accorded their full and
fair scope.”). Here, under the ordinary meaning of the words
used in the statutory text, the Nation plainly had “land
claims” for damage to its reservation lands.

In any case, were we to find the term “land claim” to be
ambiguous, and proceed under Chevron to apply the DOI’s
definition of the term, then we would find that the Nation also
had a claim concerning the impairment of title or other real
property interest or loss of possession of its reservation land.5
The flooding of the Nation’s reservation due to the federal
government’s construction of the Painted Rock dam gave rise
for a trespass claim severe enough to constitute an unlawful
taking without just compensation. Arkansas Game & Fish
Comm’n v. United States, 133 S. Ct. 511, 519 (2012)
(“[G]overnment-induced flooding can constitute a taking of
property.”). The Nation had a claim that the continual
flooding of its lands due to the Painted Rock Dam exceeded
the scope of the government’s flowage easement, which
allowed the government “occasionally” to “overflow, flood,
and submerge” the Nation’s lands, because the flooding
rendered “all of the arable land of the reservation—5,962
acres—to be unsuitable for agriculture.” The remaining
4,000 acres of the Nation’s reservation were of “little or no
economic value” due to “repeated flooding, silt deposition
and salt cedar infestation.” This taking by definition
constituted a claim for the interference to the Nation’s title to
and possession of its land, and the flooding interfered with
“other real property interest[s],” such as the Nation’s use of
the land.

5
See 25 C.F.R. § 292.2.
14 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION

Furthermore, the district court did not err in determining
that the LRA was a “settlement” of the Nation’s land claims.
Congress enacted the LRA to “facilitate replacement of
reservation lands with lands suitable for sustained economic
use which is not principally farming . . . .” The LRA required
the Nation to assign to the federal government “all right, title
and interest of the Tribe” in 9,880 acres of land the
government flooded in the Gila Bend Indian Reservation, and
to execute a “waiver and release” of “any and all claims of
water rights or injuries to land or water rights . . . with respect
to the lands of the Gila Bend Indian Reservation from time
immemorial to the date of the execution by the Tribe of such
a waiver” in exchange for $30 million in “settlement funds”
that the Nation could use to purchase new tribal lands.

Additionally, the LRA expressly provides that “[a]ny land
which the Secretary holds in trust [under the Act] shall be
deemed to be a Federal Indian Reservation for all purposes.”
In sum, we hold that Parcel 2, which the United States is now
holding in trust for the benefit of the Nation, meets the
requirements of § 2719(b)(1)(B)(i) of IGRA.

B. Judicial Estoppel and Waiver

Plaintiffs argue that the Nation is judicially estopped from
asserting that it has a right to conduct Class III gaming on
Parcel 2 under IGRA because of a position the Nation took in
a supplemental brief submitted to an arbitrator during an
unsuccessful arbitration proceeding relating to negotiations of
a 1993 Gaming Compact between the Nation and Arizona.
Plaintiffs also claim that the Nation waived its right to
conduct Class III gaming on Parcel 2 under IGRA because
the Nation was present when a “handout” was distributed at
a 1993 meeting between Arizona legislative staff and tribal
 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION 15

representatives; the handout stated the “settlement of a land
claim” exception to IGRA’s prohibition of gaming on tribal
lands taken into trust after October 17, 1988 would not affect
Arizona. We address each argument below, and conclude
that the district court correctly rejected both of these
arguments.

“[J]udicial estoppel ‘is an equitable doctrine invoked by
a court at its discretion’” “to protect the integrity of the
judicial process.” New Hampshire v. Maine, 532 U.S. 742,
749–50 (2001) (internal quotation marks omitted). Thus, we
review the district court’s decision whether to invoke judicial
estoppel for an abuse of discretion. See Hendricks & Lewis
PLLC v. Clinton, 766 F.3d 991, 995 (9th Cir. 2014). We
conclude that the district court did not abuse its discretion in
holding that the doctrine of judicial estoppel does not bar the
Nation from asserting that it has a right to conduct Class III
gaming on Parcel 2. Here’s why.

Federal courts consider the following factors described by
the Supreme Court in New Hampshire when deciding whether
to invoke the doctrine of judicial estoppel:

First, a party’s later position must be clearly
inconsistent with its earlier position. Second,
courts regularly inquire whether the party has
succeeded in persuading a court to accept that
party’s earlier position, so that judicial
acceptance of an inconsistent position in a
later proceeding would create the perception
that either the first or the second court was
misled. Third, courts ask whether the party
seeking to assert an inconsistent position
would derive an unfair advantage or impose
16 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION

unfair detriment on the opposing party if not
estopped.

Id. at 1001 (quoting New Hampshire, 532 U.S. at 750–51).

Prior to executing the 1993 Gaming Compact, the Nation
and Arizona were parties to a nonbinding arbitration
proceeding under IGRA, where the Nation and Arizona each
submitted a “last best offer” compact to an arbitrator, who
was to choose one of the two proposals without amendment.
In response to a provision in Arizona’s proposed compact
which would have barred Class III gaming on lands acquired
in trust after IGRA’s effective date, the Nation submitted a
supplemental brief which explained that Arizona’s provision:

would result in the Nation forfeiting the rights
provided to tribes in IGRA to request that in
certain circumstances after-acquired trust land
be available for class III gaming activities.
The existing federal law requires the
Governor’s concurrence. This is adequate
protection to the State and local interests. The
State simply seeks an ancillary benefit in this
provision.

Here, the district court correctly recognized and applied
the three New Hampshire factors, and thus did not abuse its
discretion in deciding not to apply the doctrine of judicial
estoppel. In regard to the first New Hampshire factor, these
sentences in the Nation’s 1992 brief are not “clearly
inconsistent” with Nation’s argument in this case that land it
acquired in trust under the LRA qualifies as a “settlement of
a land claim” pursuant to § 2719(b)(1)(B)(i) of IGRA. The
passage quoted above simply does not state that the Nation
 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION 17

would not ever pursue gaming under § 2719(b)(1)(B)(i) of
IGRA in the future. The passage states that acceptance of
Arizona’s provision would result in “after-acquired trust
land” not being available for Class III gaming in undefined
“certain circumstances.” Thus, purchase of land after 1988
would be one “certain circumstance.” But acquisition of land
as “part of . . . a settlement of a land claim” was not
mentioned as forfeited from use for Class III gaming. The
second New Hampshire factor, whether the Nation succeeded
in persuading the arbitrator to accept its argument, also
weighs in favor of the Nation. Although the arbitrator
ultimately selected the Nation’s compact, the arbitrator
expressed no view on whether and how the § 2719 IGRA
after-acquired land exceptions would apply. In any case,
Arizona refused to consent to the arbitrator’s selection, and
the arbitration concluded without the Nation obtaining any
relief, as the parties then returned to negotiations. The third
New Hampshire factor, whether the Nation’s statements in
the arbitration created an “unfair advantage or impose[d] an
unfair detriment on [the Plaintiffs],” favors the Nation as
well. Since the arbitration failed to produce a binding
compact, the Secretary of the Interior sent the Nation and
Arizona back to negotiations, where Arizona was free to
pursue any compact terms it desired.

Additionally, the Nation did not waive its right to conduct
Class III gaming on its Glendale-area property under IGRA
simply because the Nation was present when a handout was
distributed at a 1993 meeting between Arizona legislative
staff and representatives of various Arizona Indian tribes.

“A waiver is an intentional relinquishment or
abandonment of a known right or privilege. It can preclude
the assertion of legal rights. An implied waiver of rights will
18 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION

be found where there is ‘clear, decisive and unequivocal’
conduct which indicates a purpose to waive the legal rights
involved.” United States v. Amwest Sur. Ins. Co., 54 F.3d
601, 602–03 (9th Cir. 1995) (internal citations and quotation
marks omitted).

Here, during negotiations for the 1993 Compact, tribal
representatives of various Arizona Indian tribes, including the
Nation, met with Arizona legislative staffers. At the meeting,
a handout was distributed which read:

Another exception to the prohibition of
gaming on after acquired lands is when the
lands are taken into trust as part of a
settlement of land claim. This will not effect
[sic] Arizona because aboriginal land claims
in Arizona have already been settled pursuant
to the Indian Claims Commission Act of
1946.

There is nothing in the record that shows that representatives
of the Nation either drafted or distributed the handout or were
primary speakers at this meeting. Plaintiffs instead support
their waiver claim by arguing that the Nation was present at
the meeting and did not voice disagreement with the handout.
Because mere silence is not “clear, decisive and unequivocal
conduct,” Amwest Sur. Ins. Co., 54 F.3d at 603 (quoting
Groves v. Prickett, 420 F.2d 1119, 1125 (9th Cir. 1970)), we
agree with the district court that we “cannot conclude that the
Nation’s silence during the 1993 meeting constituted a
knowing waiver, in perpetuity, of its right to claim the
exception in § 2719(b)(1)(B)(i).”
 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION 19

But even were we to assume there was a duty to object to
the legislative staffers’ view that no Arizona land could be
affected by the “settlement of a land claim” exception, and
that view was voiced during the negotiations for the 1993
compact, that view did not make it into the Compact as
written and executed. Hence, it is without contractual force
because of the integration clause of the Compact, which
provides that the Compact “contains the entire agreement of
the parties with respect to matters covered by this Compact
and no other statement, agreement, or promise made by any
party, officer, or agent of any party shall be valid or binding.”

IV

The Plaintiffs argue that the language of the Compact
implicitly prohibits Class III gaming on the Glendale-area
property purchased by the Nation and held in trust by the
government, and Plaintiffs seek to introduce extrinsic
evidence to prove this claim. The Nation responds that the
district court correctly granted it summary judgment on this
issue, because “IGRA authorizes gaming on the Settlement
Property, and the Compact’s plain terms authorize the Nation
to game where IGRA permits.”

The Compact contains a choice-of-law clause, but it does
not clearly identify what law applies to interpret the terms of
the Compact. The clause provides: “This Compact shall be
governed by and construed in accordance with the applicable
laws of the United States, and the Nation and the State.” To
decide whether Plaintiffs’ proffered extrinsic evidence was
admissible, the district court first engaged in a choice-of-law
analysis, pursuant to the Restatement (Second) of Conflicts
of Law, to determine what body of law governed the
interpretation of the Compact: federal common law or
20 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION

Arizona state law.6 As discussed below, although the district
court erred in concluding that Arizona state law governs the
interpretation of the Compact, this error is harmless because
the same outcome results under both federal common law and
Arizona contract law. This is because the Plaintiffs rely on
extrinsic evidence to vary or contradict the written terms of
the Compact, which is not permissible under either federal
common law or Arizona contract law.

We recently reaffirmed that “[g]eneral principles of
federal contract law govern . . . Compacts[] which were
entered pursuant to IGRA.” Pauma Band of Luiseno Mission
Indians v. California, — F.3d —, No. 14-56104, 2015 WL
9245245, at *4 (9th Cir. Dec. 18, 2015) (quoting Cachil Dehe
Band of Wintun Indians of the Colusa Indian Community v.
California, 618 F.3d 1073 (9th Cir. 2010)). Federal common
law follows the traditional approach for the parol evidence
rule: “[A] contract[] must be discerned within its four
corners, extrinsic evidence being relevant only to resolve
ambiguity in the [contract].” United States v. Asarco Inc.,
430 F.3d 972, 980 (9th Cir. 2005).

Arizona’s parol evidence rule is more liberal: “[T]he
judge first considers the offered evidence, and if he or she
finds that the contract language is ‘reasonably susceptible’ to
the interpretation asserted by the proponent, the evidence is
admissible to determine the meaning intended by the parties.”
Taylor v. State Farm Mut. Auto. Ins. Co., 854 P.2d 1134,
1140 (Ariz. 1993). In applying Arizona’s parol evidence rule,
however, the Ninth Circuit has noted that “the Taylor court

6
The district court noted that “[a]lthough the governing law provision
of the Compact also mentions the Nation’s law, the Nation has no
developed law on the parol evidence rule.”
 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION 21

specifically limited its liberal use of parol evidence to
contract interpretation and rejected its use to vary or
contradict a final agreement.” Velarde v. PACE Membership
Warehouse, Inc., 105 F.3d 1313, 1317–18 (9th Cir. 1997)
(emphasis added) (citing Taylor, 854 P.2d at 1139 –40).

Here, to begin, the Compact that the parties executed
contains an integration clause which provides that the
“Compact contains the entire agreement of the parties with
respect to the matters covered by this Compact and no other
statement, agreement, or promise made by any party, officer,
or agent of any party shall be valid or binding.” While not
dispositive, this broad integration clause that was agreed to by
sophisticated, represented parties after years of tedious
negotiations strongly counsels in favor of rejecting Plaintiffs’
proffered extrinsic evidence to interpret the terms of the duly-
executed written agreement. Section 3(a) of the Compact,
entitled “Authorized Class III Gaming Activities,” explicitly
authorizes the Nation to conduct Class III gaming, subject to
the terms and conditions of the Compact. Plaintiffs seek to
introduce extrinsic evidence to prove that during negotiations
of the Compact, the parties understood that the Compact
would bar the Nation from opening a casino in the Phoenix
metropolitan area. But § 3(j) of the Compact, entitled
“Location of Gaming Facility,” contains no such limitation,
and provides that “[a]ll Gaming Facilities shall be located on
the Indian Lands of the Tribe,” and “Gaming Activity on
lands acquired after the enactment of the [IGRA] on October
17, 1988 shall be authorized only in accordance with
25 U.S.C. § 2719.” The only other language in the Compact
which could be read to limit the location of the Nation’s
gaming facilities is § 3(c)(3), which provides:
22 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION

If the Tribe is the Tohono O’odham Nation,
and if the Tribe operates four (4) Gaming
Facilities, then at least one of the four (4)
Gaming Facilities shall: a) be at least 50 miles
from the existing Gaming Facilities of the
Tribe in the Tucson metropolitan area as of
the Effective Date.

This language clearly does not prohibit the Nation from
gaming in the Phoenix metropolitan area on its Indian Lands.7

In short, the duly-executed Compact negotiated at length
by sophisticated parties expressly authorizes the Nation to
conduct gaming on its “Indian Lands,” subject to the
requirements of IGRA § 2719. This language is
unambiguous and not reasonably susceptible to Plaintiffs’
interpretation that the Compact implicitly bars the Nation
from gaming in the Phoenix metropolitan area. The
Plaintiffs’ extrinsic evidence to the contrary attempts to vary
or contradict the terms of a final agreement, and therefore
must be rejected. Since we hold that Parcel 2 complies with
the requirements of IGRA § 2719, and the Compact expressly
allows the Nation to conduct Class III gaming there, the
district court correctly entered summary judgment in favor of
the Nation on Plaintiffs’ breach of Compact claim.

7
Application of the interpretive tool expressio unius est exclusio alterius
(“the expression of one thing is the exclusion of the other”) also supports
this reading of the Compact. The language described above is the only
express limitation in the executed Compact on the geographic location of
the Nation’s gaming facilities.
 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION 23

V

Relatedly, Plaintiffs also argue that the Nation’s plan to
conduct Class III gaming on Parcel 2 violates the implied
covenant of good faith and fair dealing in the Compact.

“It is true that there is an implied covenant in every
contract that each party will do nothing to deprive the other
of the benefits arising from the contract.” Sessions, Inc. v.
Morton, 491 F.2d 854, 857 (9th Cir. 1974). “This ‘covenant
of fair dealing’ imposes the duty on each party to do
everything that the contract presupposes will be done in order
to accomplish the purpose of the contract. However, this
implied obligation must arise from the language used or it
must be indispensable to effectuate the intention of the
parties.” Id. (internal quotation marks omitted).

Here, the terms of the Compact do not prohibit the Nation
from building a Class III casino in the Phoenix area; to the
contrary, the Compact expressly authorizes Class III gaming
on “Indian lands,” subject to the requirements of 25 U.S.C.
§ 2719(b)(1)(B)(i). Thus, since Parcel 2 in Glendale is now
held in trust as part of the Nation’s “Indian Lands,” see
Nation, 804 F.3d at 1301, and Parcel 2 meets the
requirements of IGRA, the Compact authorizes the Nation to
conduct gaming there. Based on the terms of the Compact,
it is not reasonable for Plaintiffs to expect that the Compact
prohibits the Nation from the conduct of gaming on Parcel 2.
The Nation’s choice to conduct Class III gaming in
accordance with the express terms of the Compact does not
deviate from the agreed common purpose of the Compact,
and therefore does not breach the implied covenant of good
faith and fair dealing.
24 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION

VI

Plaintiffs’ last argument is that the district court erred in
ruling that tribal sovereign immunity bars Plaintiffs’ claims
against the Nation for promissory estoppel, fraudulent
inducement, and material misrepresentation. This argument
is without merit.

“As a matter of federal law, an Indian tribe is subject to
suit only where Congress has authorized the suit or the tribe
has waived its immunity.” Kiowa Tribe of Okla. v. Mfg.
Techs., Inc., 523 U.S. 751, 754 (1998). Here, the Compact
expressly states that it does not waive the Nation’s tribal
sovereign immunity. Plaintiffs claim instead that
§ 2710(d)(7)(A)(ii) of IGRA abrogates the Nation’s tribal
sovereign immunity for their non-Compact claims. Not so.
That section provides that “[t]he United States district courts
shall have jurisdiction over . . . any cause of action initiated
by a State or Indian tribe to enjoin a class III gaming activity
located on Indian lands and conducted in violation of any
Tribal-State compact . . . .” 25 U.S.C. § 2710(d)(7)(A)(ii)
(emphasis added). Congress thus abrogated the Nation’s
tribal sovereign immunity for claims alleging only violations
of the Compact. See Rincon Band of Luiseno Mission Indians
v. Schwarzenegger, 602 F.3d 1019, 1028 n.9 (9th Cir. 2010)
(recognizing “the canon of construction obligating [the court]
to construe a statute abrogating tribal rights narrowly and
most favorably towards tribal interests”).

The district court correctly found that Plaintiffs’ claims
for fraud in the inducement, material misrepresentation, and
promissory estoppel do not constitute claims for a violation
of the Compact. “A promissory estoppel claim is not the
same as a contract claim. Promissory estoppel . . . is not a
 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION 25

theory of contract liability.” Double AA Builders v. Grand
State Constr., 114 P.3d 835, 843 (Ariz. Ct. App. 2005). And
fraudulent inducement and material misrepresentation are tort
claims, not breach of contract claims. See Morris v. Achen
Constr. Co., 747 P.2d 1211, 1213 (Ariz. 1987) (“The duty not
to commit fraud is obviously not created by a contractual
relationship and exists . . . even when there is no contractual
relationship between the parties at all.”). As such, these
claims do not fall within IGRA’s limited abrogation of tribal
sovereign immunity.8 25 U.S.C. § 2710(d)(7)(A)(ii).
Therefore, the district court correctly concluded that it lacked
subject matter jurisdiction over Plaintiffs’ non-Compact
claims.

8
Plaintiffs cite a footnote in the U.S. Supreme Court’s recent Bay Mills
decision for the proposition that the doctrine of tribal sovereign immunity
should not bar tort claims against an Indian Tribe at all. But in the cited
footnote, the Court was discussing the principle of stare decisis, and
expressly reserved decision on whether a case involving an unwitting “tort
victim” “would present a ‘special justification’ for abandoning precedent,”
because that case was “not before [the Court].” Michigan v. Bay Mills
Indian Cmty., 134 S. Ct. 2024, 2036 n.8 (2014) (quoting Arizona v.
Rumsey, 467 U.S. 203, 212 (1984)). We have held that tribal sovereign
immunity bars tort claims against an Indian tribe, and that remains good
law. See Cook v. AVI Casino Enters., Inc., 548 F.3d 718, 725 (9th Cir.
2008) (affirming dismissal of plaintiff’s negligence claims against the Fort
Mojave Indian Tribe under doctrine of tribal sovereign immunity, where
the plaintiff was seriously injured by an intoxicated driver who had been
drinking at a casino operated by the Tribe).

Furthermore, as the Supreme Court also noted in Bay Mills, “it is
fundamentally Congress’s job, not [the federal courts], to determine
whether or how to limit tribal immunity. The special brand of sovereignty
the tribes retain—both its nature and its extent—rests in the hands of
Congress.” Bay Mills Indian Cmty., 134 S. Ct. at 2037.
26 GILA RIVER INDIAN CMTY. V. TOHONO O’ODHAM NATION

CONCLUSION

For the foregoing reasons, the orders of the district court
in favor of the Nation are AFFIRMED.