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Guidiville Band v. NGV Gaming, Inc. (9th Cir. - June 26, 2008)

By Shaun Martin

You recall, I'm confident, the classic line from Bill Clinton's deposition during the Monica Lewinski days: "It depends upon what the meaning of the word 'is' is." A line that was -- perhaps entirely justifiably -- roundly mocked as laughably absurd.

And, yet, guess what the entire dispute in this case -- which lasts for 45 single-spaced pages -- surrounds? You guessed it. What the meaning of the word "is" is.

It's an awesome dispute, especially given this historical context. Particularly since there's both a majority and dissenting opinion -- in other words, the dispute is actually a darn close one. I was especially interested in this fight because the dispute resolved by the Ninth Circuit is essentially identical the one that Clinton proffered as a defense of his deposition testimony.

Clinton maintained that "is" is a present tense term, and hence that his statement that "there's nothing going on with us" was accurate, since, at that point, the relationship had ended. To quote the now-infamous defense of President Clinton: "It depends on what the meaning of the word 'is' is. If the -- if he -- if 'is' means is and never has been, that is not -- that is one thing. If it means there is none, that was a completely true statement. . . . Now, if someone had asked me on that day, are you having any kind of sexual relations with Ms. Lewinsky, that is, asked me a question in the present tense, I would have said no. And it would have been completely true." I could put it a bit more articulately: "I testified that there 'is' nothing between us. 'Is' is a present tense word, so since there wasn't anything going on at the time, it was true."

The Ninth Circuit case revolves around a similar -- and dispositive -- dispute surrounding the meaning of the term. Section 81 of Title 25 requires approval by the Secretary of the Interior for certain contracts that relate to "Indian Lands," and defines that term as "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." So the question is whether "Indian Lands" include only those lands held as of the date of passage of Section 81 or includes future lands obtained as well. In other words, is "is" a present tense verb?

So the Ninth Circuit held . . . [the excitement builds] . . . that "is" is indeed a present tense verb, so the covered lands are only those held at the time. In essence, that Clinton was correct. Indeed, the majority held that "is" is only present tense -- according to the "unambiguous" language of the statute, no less -- even notwithstanding the language of the Dictionary Act (1 U.S.C. sect. 1), which states that unless the context indicates otherwise, "words used in the present tense include the future as well."

So pretty interesting, huh? Judge N. Smith dissents, arguing that lands acquired in the future are included as well. But -- sadly, to my eyes -- never draws the analogy (or even mentions) to the Clinton dispute. Which, in my mind, would be a pretty decent argument. As well as, perhaps more importantly, funny.

So what does "is" mean, my friends? Was Clinton, in fact, correct? Did he, in fact, testify truthfully? Don't forget that the Supreme Court held in Bronston that an answer that is literally true -- even if intentionally misleading -- doesn't count as perjury.

If I'm Clinton's lawyer, I would definitely cite today's case from the Ninth Circuit as strong support for his position. And if I was on the Ninth Circuit, you can bet your bottom dollar that I'd draw the analogy in the present dispute. Because it's an interesting -- and perhaps enlightening -- one.

Full post as published by California Appellate Report on June 26, 2008 (boomark / email).