Friendly, Chief Judge, and Lumbard and Mulligan, Circuit Judges. Lumbard, Circuit Judge (dissenting).
This appeal from an order of the District Court for the Northern District of New York, dismissing a complaint by two Indian nations for want of federal jurisdiction, takes us back to the early days of the Republic. Although on the surface the controversy seems highly appropriate for federal cognizance, that claim shatters on the rock of the "wellpleaded complaint" rule for determining federal question jurisdiction, and we find no other basis that would permit a federal court to entertain the action.
The principal allegations of the complaint are as follows: The plaintiffs are The Oneida Indian Nation of New York State, an Indian Nation or Tribe with its principal reservation in Oneida and Madison Counties, New York, and The Oneida Indian Nation of Wisconsin, an incorporated Indian Nation or Tribe with its principal reservation in Wisconsin. The defendants are the two New York counties just mentioned. After alleging the required jurisdictional amount and diversity of citizenship,*fn1 the complaint dips into history. Prior to the American Revolution the Oneidas owned some 6,000,000 acres of land in central New York. In contrast to other New York Indian tribes, they fought on the side of the colonists. See U.S. Dept. of Interior, Federal Indian Law 966-67 n. 1 (1958) [hereinafter cited as Federal Indian Law]. In recognition of this, a number of treaties were made confirming them in the possession of their lands, except such as they had sold or might choose to sell.*fn2 To implement these and other treaty obligations, the first Congress adopted the Indian Non-Intercourse Act, 1 Stat. 137 (1790), later Rev. Stat. § 2116, and now 25 U.S.C. § 177. This provided, inter alia :
No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution.
President Washington explained the statute to a delegation of Seneca Indians as follows:
"Here, then, is the security for the remainder of your lands. No state, nor person, can purchase your lands, unless at some public treaty, held under the authority of the United States. The General Government will never consent to your being defrauded, but it will protect you in all your just rights."
Prior to adoption of the statute, the Oneidas, in the Treaty of Fort Stanwix in 1788, between themselves and the State of New York, had ceded over 5,000,000 acres of their lands to New York State for what now seems an absurdly small consideration. They had reserved about 300,000 acres in Oneida and Madison Counties. In 1795 representatives of New York State procured the cession by "treaty," see Federal Indian Law 513 n. 6; cf. Seneca Nation v. Christy, 162 U.S. 283, 16 S. Ct. 828, 40 L. Ed. 970 (1896), of a large portion of these lands, again for what now seems an inadequate consideration and allegedly was so even then. The complaint asserts that no federal consent was obtained, that no United States Commissioner was present at the negotiation or execution of the purported treaty, and that the United States has never approved or ratified it. Part of the premises deeded in 1795 became the property of the defendant counties which currently occupy them for buildings, roads or other public improvements. "By reason of such occupancy of plaintiffs' premises, defendants for the period January 1, 1968 through December 31, 1969 became indebted to plaintiffs for the fair rental value of such premises to the extent of at least $10,000.00, exclusive of costs and interest."*fn3 Plaintiffs demanded judgment for at least $10,000.00 "plus such other and further monetary damages as the Court may deem just."
Appealing from a dismissal of the complaint for lack of federal jurisdiction, the Oneidas assert three different bases -- the existence of a federal question, diversity of citizenship and, surprisingly, a claim under the Civil Rights Act.
As stated, on a surface reading the complaint would seem to state a claim which "arises under the Constitution, laws, or treaties of the United States," 28 U.S.C. § 1331(a), or to institute an action "by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States," 28 U.S.C. § 1362.*fn4 Decision would ultimately turn on whether the deed of 1795 complied with what is now 25 U.S.C. § 177 and what the consequences would be if it did not.*fn5 However, this alone does not establish the existence of federal question jurisdiction. "Under existing law it is well established that federal question jurisdiction is present only if the reliance on a federal right appears on the face of the well-pleaded complaint. The first Supreme Court decision to construe the Act of 1875 [creating general federal question jurisdiction] applied such a rule, citing Chitty to determine what allegations were proper, Gold-Washing & Water Co. v. Keyes, 96 U.S. 199, 24 L. Ed. 656 (1877), and the rule has been insisted upon ever since." ALI Study of the Division of Jurisdiction between State and Federal Courts, Commentary on § 1311, p. 169 (1969). One effect of the rule is to bar "access to federal court on the basis of allegations which are not required by nice pleading rules," Id. at 169-70, notably in cases involving rights to land.
Although plaintiffs' only specific claims for relief are for two years' rental value as a result of defendants' occupancy, or damages for denial of plaintiffs' right of use, see note 3 supra, their success depends upon establishment of their right to possession, see Willis v. McKinnon, 178 N.Y. 451, 70 N.E. 962 (1904); Crawford v. Town of Hamburg, 19 A.D.2d 100, 241 N.Y.S.2d 357 (1963), and the action is thus basically in ejectment. As to this, a long and unbroken line of Supreme Court decisions holds that the complaint in such an action presents no federal question even when a plaintiff's claim of right or title is founded on a federal statute, patent or treaty. Florida Central & P. Railroad v. Bell, 176 U.S. 321, 20 S. Ct. 399, 44 L. Ed. 486 (1900); Filhiol v. Maurice, 185 U.S. 108, 22 S. Ct. 560, 46 L. Ed. 827 (1902); Filhiol v. Torney, 194 U.S. 356, 24 S. Ct. 698, 48 L. Ed. 1014 (1904); Taylor v. Anderson, 234 U.S. 74, 34 S. Ct. 724, 58 L. Ed. 1218 (1914); White v. Sparkill Realty Corp., 280 U.S. 500, 50 S. Ct. 186, 74 L. Ed. 578 (1930). These decisions were followed and applied by this court in Deere v. St. Lawrence River Power Co., 32 F.2d 550 (2 Cir. 1929).*fn6
The frequently cited decision in Taylor v. Anderson, supra, written for a unanimous Court by Mr. Justice Van Devanter, who spoke with particular authority on federal jurisdiction, is directly in point. The complaint in an action in ejectment "alleged with much detail that the defendants were asserting ownership in themselves under a certain deed, and that it was void under the legislation of Congress restricting the alienation of lands allotted to the Choctaw and Chickasaw Indians." 234 U.S. at 74-75, 34 S. Ct. at 724. This was held not to state a claim arising under the laws of the United States, since all that needed to be alleged was "that the plaintiffs were owners in fee and entitled to the possession; that the defendants had forcibly taken possession and were wrongfully keeping the plaintiffs out of possession, and that the latter were damaged thereby in a sum named." Id. at 74, 34 S. Ct. at 724.*fn7 It was of no moment that the defendants might and probably would defend on the basis of the deed, which the plaintiffs would then challenge as invalid under federal legislation. Jurisdiction "must be determined from what necessarily appears in the plaintiff's statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation or avoidance of defenses which it is thought the defendant may interpose." Id. at 75-76, 34 S. Ct. at 724. (Emphasis supplied).
Plaintiffs are not aided by decisions of this court on which they heavily rely. Tuscarora Nation of Indians v. Power Authority, 257 F.2d 885 (2 Cir.), cert. denied, 358 U.S. 841, 79 S. Ct. 66, 3 L. Ed. 2d 76 (1958), was not an action in ejectment by Indians who were out of possession but a suit for an injunction by Indians who were in possession. In such an action, as in the case of a bill to remove a cloud on title, Hopkins v. Walker, 244 U.S. 486, 37 S. Ct. 711, 61 L. Ed. 1270 (1917),*fn8 a complete statement of plaintiff's claim to relief is appropriate. Ivy Broadcasting Co. v. American T. & T. Co., 391 F.2d 486 (2 Cir. 1968), characterized in appellants' brief as "directly on point," is even further from the mark. The significant holding there was that a case could be regarded as arising under a law of the United States even though this was "federal common law" rather than a statute, a view recently affirmed by the Supreme Court, Illinois v. City of Milwaukee, 406 U.S. 91, 99-100, 92 S. Ct. 1385, 1390, 31 L. Ed. 2d 712 (1972). ...