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) interpreting contracts that the district court did not review; (2) making its own determination that the contracts were unambiguous; (3) using parol evidence to interpret the contract even though it finds that the contracts were unambiguous; and (4) picking and choosing which parol evidence on which to rely, even though the district court had not addressed the issues of whether to admit parol evidence and, if so, what evidence to admit. I would instead affirm the district court’s summary judgment decision dismissing NGV’s tor-tious interference complaint against Har-rah’s and dismiss the appeal for declaratory relief filed by the Tribe as moot.
I.
“The doctrine that the federal government stands in a fiduciary relationship to Native Americans has been a part of our common law since the early days of the Republic.” Eric v. Sec’y of HUD, 464 *784F.Supp. 44, 46 (D.Alaska 1978) (citing Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L.Ed. 25 (1831)). “Over the years courts at all levels have sustained the doctrine that in its relations with Native peoples the government owes a special duty analogous to those of a trustee.” Id. (citing Heckman v. United States, 224 U.S. 413, 32 S.Ct. 424, 56 L.Ed. 820 (1912); Seminole Nation v. United States, 316 U.S. 286, 62 S.Ct. 1049, 86 L.Ed. 1480 (1942); Red Fox v. Red Fox, 564 F.2d 361, 365 (9th Cir.1977); Manchester Band of Pomo Indians, Inc. v. United States, 363 F.Supp. 1238 (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, 13 S.Ct. 577, 37 L.Ed. 429 (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 parties’ 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 Congress.” 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 undefined, 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 York, 524 U.S. 417, 429, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998)).
In the Dictionary Act, Congress mandated that, 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.” 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 primarily 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 Interi- or’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 *785reading 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 supports reading § 81 to include the future tense. The United States Supreme Court has made clear that “the canons of construction 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, 105 S.Ct. 1245, 84 L.Ed.2d 169 (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 Indians, 471 U.S. 759, 766, 105 S.Ct. 2399, 85 L.Ed.2d 753 (1985). This court has previously written, “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, 100 S.Ct. 2592, 65 L.Ed.2d 684 (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., 19 Cal.4th 26, 77 Cal.Rptr.2d 709, 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 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 surrounding the word at issue, or the texts of other *786related congressional Acts.” Rowland v. California Men’s Colony, 506 U.S. 194, 199, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993). However, the words of § 81 do not provide 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” provide a different context. Instead, the majority suggests that 25 U.S.C. §§ 465, 2710, and 2719 (other congressional acts) provide 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 context of § 81.
The sections cited by the majority provide additional protections 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.
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 providing land for Indians.” 25 U.S.C. § 465. Nothing in that section 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 encumbering 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 establishment would be in the best interest of the Indian tribe and whether it would be detrimental to the surrounding community. 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. However, 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 knowledgeable 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, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990). Thus, there is simply no reason for Congress 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 language in the Dictionary *787Act is hoary, because the Supreme 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 Dictionary 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 attitudes. 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 NGVs 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. 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 Gaming 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. California 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, 27 Cal.App.4th 551, 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 *788decides the language is ‘reasonably susceptible’ to the interpretation urged, the extrinsic evidence is then admitted to aid in the second step-interpreting the contract.” Winet v. Price, 4 Cal.App.4th 1159, 6 Cal.Rptr.2d 554, 557 (Cal.Ct.App.1992).
The district court had no opportunity to interpret the language 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, the district court is in a better position to “make these determinations in the first instance.” See Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Notwithstanding that the district court never reached the analysis set forth in Winet, the majority finds that the language of the Tribe/NGY 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 purview of the parties’ transaction.” The majority also cites to the Bureau of Indian Affairs letters to buttress its finding regarding 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 appellate court’s application of parol evidence to interpret contractual 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 language 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 evidence, if any, to consider. Therefore, I would remand to the district court for it to make a determination in the first 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., 69 Cal.2d 33, 69 Cal.Rptr. 561, 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 meaning to which the language of the instrument is reasonably susceptible.”)
B.
The majority also ignores the rules of contract interpretation 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 dispute that the Lease “encumbers” land which the lease defines as “Trust Lands.” *789See 25 C.F.R. § 84.002 (“Encumber means to attach a claim, lien, right of entry or liability to real property”). 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, mortgage or encumber all or any part of its title, or interest in or to the “Trust Lands,” as defined in the parties’ contracts, without 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 unrestricted access ... for purposes of developing, installing and constructing the Structure.” Thus, we must determine whether the defined term “Trust Lands” used in the Lease encompasses 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 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 property held by the United States in trust for the benefit of the Tribe, with no exceptions. Thus, even if the majority is correct 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 majority 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 agreement 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” meaningless. 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 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 “internally consistent.” Brobeck, Phleger & Harrison v. Telex Corp., *790602 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 “internally inconsistent.” First, the majority overlooks the fact that the first letter of every definition in the Master Definitions List is capitalized. Thus, the fact that “Property” is capitalized 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 definition of “Trust Lands,” refers only to the term as defined previously in the contracts. At best, the majority’s reading of this language suggests an ambiguity in the contracts. An ambiguous 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, threatened against or affecting the Lessee or the Trust Lands or by any court, arbitrator, administrative 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 representations or warranties on land it had not yet acquired. Thus, at the time the Tribe and NGV entered into their contracts, section 14.1 of the Lease would have been meaningless.
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 parties’ 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 Interior 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 Har-rah’s after entering into the contracts with NGV. In the Harrah’s/Tribe contracts, the Tribe specifically 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, *791wherein 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 majority 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 settlement 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 continues 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 Affiliates 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 provisions hereof shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect any of the other terms or provisions hereof.
Based upon the language in foregoing clauses in the contracts, 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 applicable, California law provides that:
the compromise of a doubtful claim asserted and maintained in good faith constitutes a sufficient consideration 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, 150 Cal. 159, 88 P. 708, 710 (Cal.1907).
California law further provides that partially illegal contracts may be upheld if the illegal portion is severable from the part which is legal. Mailand v. Burckle, 20 Cal.3d 367, 143 Cal.Rptr. 1, 572 P.2d 1142, 1152 (Cal.1978) (severing a contract void under the Cartwright Act). The issue of “whether a contract is entire or whether its various stipulations are to be regarded as severable is a question of construction.” Sterling v. Gregory, 149 Cal. 117, 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 contract ... according to the intention of the parties.” Pac. Wharf & Storage Co. v. Standard Am. Dredging Co., 184 Cal. 21, 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 evi-*792dentiary proceedings to resolve those issues.” Bank of New York v. Fremont Gen. Corp., 523 F.3d 902, 910 (9th Cir.2008).