FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
K2 AMERICA CORPORATION, No. 10-35455
Plaintiff-Appellant,
v. D.C. No.
4:09-cv-00076-RKS
ROLAND OIL & GAS, LLC,
OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the District of Montana
Keith Strong, Magistrate Judge, Presiding
Argued March 9, 2011
Submitted August 5, 2011
Portland, Oregon
Filed August 5, 2011
Before: Dorothy W. Nelson, Sidney R. Thomas, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Thomas
10251
K2 AMERICA CORP. v. ROLAND OIL & GAS 10253
COUNSEL
Nick A. Swartzendruber, Poulson, Odell & Peterson, L.L.C.,
Denver, Colorado, for plaintiff-appellant K2 America Corpo-
ration.
Brad Aklestad, Aklestad Law Office, Shelby, Montana, for
defendant-appellee Roland Oil & Gas, LLC.
Elizabeth Ann Peterson, Environment & Natural Resources
Division, United States Department of Justice, Washington,
D.C., for amicus curiae United States.
Jeanne S. Whiteing, Boulder, Colorado, for amicus curiae
Blackfeet Tribe.
OPINION
THOMAS, Circuit Judge:
In this appeal, we consider whether federal jurisdiction
exists over a lawsuit between two Montana corporations
10254 K2 AMERICA CORP. v. ROLAND OIL & GAS
alleging state law claims arising from a dispute over lands
held by the United States in trust for various Indian allottees.
We conclude that federal jurisdiction does not extend to the
claims, and we affirm the judgment of the district court.
I
A
Plaintiff-Appellant K2 America Corporation (“K2”)
appeals the dismissal for lack of subject matter jurisdiction of
its action against Defendant-Appellee Roland Oil & Gas, LLC
(“Roland”). K2 asserts tort, contract, and state statutory
claims and seeks, among other remedies, a constructive trust
and declaratory judgment over an oil and gas lease located on
allotted land, wherein title to the land is held by the United
States in trust for various Indian allottees.
In its complaint K2 alleges the following facts, which we
take as true in reviewing a Rule 12(b)(1) motion to dismiss
for lack of jurisdiction. Wolfe v. Strankman, 392 F.3d 358,
362 (9th Cir. 2004).
K2, a Montana corporation, engages in exploration and pro-
duction of oil and gas resources, and holds a number of leases
in Montana. Roland is a Montana limited liability company in
the same line of business.
From 2004 to 2008, K2 retained John Harper as a contract
operator to assist the company in oil and gas development.
Through his work, Harper became familiar with K2’s busi-
ness plans and prospective lease acquisitions, including its
plans to pursue oil and gas leases in the “Kye Trout” area,
comprising roughly 600 acres in Sections 5 and 6, Township
31 North, Range 5 West, Montana Principal Meridian
(“Subject Leases”). A portion of the Subject Leases lies in
allotted land, wherein title is held by the United States in trust
K2 AMERICA CORP. v. ROLAND OIL & GAS 10255
for various Indian allottees, who are enrolled members of the
Blackfeet Tribe. K2 calls this portion the “Allotment Lease.”
K2 provided Harper information about the Subject Leases
in order (as one might expect) to further its business interests.
Harper had other designs, however: He formed Roland “for
the very purpose of acquiring the Subject Leases.” In doing
so, Harper solicited capital and other assistance from K2’s
competitor, Robert Miller. Roland has already drilled two
wells on the Subject Leases and plans to continue developing
the leaseholds soon.
B
K2 sued Roland in federal district court, bringing claims for
tortious interference with prospective economic advantage,
misappropriation of trade secrets, conversion, civil conspir-
acy, and implied contract/unjust enrichment. K2 sought
money damages; a constructive trust requiring Roland to
assign its right, title, and interest in the Allotment Lease to
K2; a declaration that K2 is the rightful owner of all right,
title, and interest in the Allotment Lease; punitive or exem-
plary damages; and attorney’s fees.
Roland answered and moved to dismiss K2’s complaint for
lack of subject matter jurisdiction. The district court granted
dismissal, holding that “28 U.S.C. § 1360, the only primary
basis of federal jurisdiction alleged, does not confer federal
jurisdiction” and that the supplemental jurisdiction statute, 28
U.S.C. § 1367, does not supply jurisdiction where no federal
original jurisdiction exists.
We review de novo a district court’s dismissal of a com-
plaint for lack of subject matter jurisdiction. Peabody Coal
Co. v. Navajo Nation, 373 F.3d 945, 948 (9th Cir. 2004).
II
Federal district courts are “courts of limited jurisdiction,”
possessing “only that power authorized by Constitution and
10256 K2 AMERICA CORP. v. ROLAND OIL & GAS
statute.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545
U.S. 546, 552 (2005) (internal quotation marks omitted). We
“presume[ ] that a cause lies outside this limited jurisdiction,
and the burden of establishing the contrary rests upon the
party asserting jurisdiction.” Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted).
K2’s jurisdictional arguments hinge on a single factual alle-
gation: the status of the land associated with the Allotment
Lease. Because that land is held in trust by the United States
for Indian allottees, K2 contends that the federal courts have
exclusive jurisdiction over actions concerning ownership of
any interest in that land. Accordingly, K2 urges, the “com-
plete preemption” exception applies to disputes involving
Indian trust lands, such that its case arises under 28 U.S.C.
§ 1331.
As a preliminary matter, we note that in determining the
existence of subject matter jurisdiction, a federal court is “not
limited to the jurisdictional statutes identified in the com-
plaint.” Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511,
1515 (9th Cir. 1987). “If facts giving the court jurisdiction are
set forth in the complaint, the provision conferring jurisdic-
tion need not be specifically pleaded.” Williams v. United
States, 405 F.2d 951, 954 (9th Cir. 1969). Thus, the district
court could have looked beyond the statutes K2 pleaded, 28
U.S.C. §§ 1360(b) and 1367, and we will do so here. See Ger-
ritsen, 819 F.2d at 1515.1
1
We review this case with the aid of briefing by amici the United States
and the Blackfeet Nation Indian Tribe. Following oral argument, we
invited each to file a brief addressing, inter alia, whether the district court
had jurisdiction pursuant to 28 U.S.C. §§ 1360(b), 1331 (such as under the
doctrine of “complete preemption”), or 1353; 25 U.S.C. § 345; or any
other basis. The United States and the Blackfeet Tribe both concluded that
the district court did not have jurisdiction.
K2 AMERICA CORP. v. ROLAND OIL & GAS 10257
A
In its complaint, K2 pleaded jurisdiction under 28 U.S.C.
§ 1360(b). The district court held that § 1360(b) does not
grant federal jurisdiction, and we agree.2
[1] Through what is commonly known as “Public Law
280” (“P.L. 280”), Congress provided to certain states3 broad
jurisdiction over criminal offenses committed in Indian coun-
try, 28 U.S.C. § 1162(a), and limited jurisdiction over civil
causes of action arising in Indian country, id. § 1360(a). Doe
v. Mann, 415 F.3d 1038, 1048, 1050 (9th Cir. 2005); see also
California v. Cabazon Band of Mission Indians, 480 U.S.
202, 207-08 (1987).4 The precise limitations on the grant of
civil jurisdiction appear in 28 U.S.C. § 1360(b), the provision
cited by K2, which provides:
2
K2’s opening brief hinted that § 1360(b) acknowledges “exclusive fed-
eral court jurisdiction” over this action, but in later briefing K2 concedes
that § 1360(b) does not itself confer jurisdiction. Instead, K2 contends that
§ 1360(b) “recognizes the scope of federal preemption and the types of
cases that must be adjudicated in federal court.” We take up that argument
shortly.
3
P.L. 280 originally delegated jurisdiction to six so-called “mandatory
states.” Other states, Montana included, were considered “optional states”
that could unilaterally assume jurisdiction through affirmative legislative
action and, following Congress’s 1968 amendments, with tribal consent.
Big Spring v. Conway (In re Estate of Big Spring), ___ P.3d ___, No. DA
10-0099, 2011 WL 2162990, at *14 (Mont. May 19, 2011). “Montana has
not assumed jurisdiction on the Blackfeet Reservation under PL-280, and
the Blackfeet Tribe has not consented to state assumption of civil jurisdic-
tion pursuant to the procedures outlined in PL-280 and [Montana statute].”
Id.
4
P.L. 280’s “central focus” concerned authorizing state criminal juris-
diction over offenses committed by or against Indians on reservations.
Bryan v. Itasca Cnty., 426 U.S. 373, 380 (1976); Doe, 415 F.3d at 1051.
The grant of civil jurisdiction “was extended almost as an afterthought.”
Santa Rosa Band of Indians v. Kings Cnty., 532 F.2d 655, 661 (9th Cir.
1975); see also Bryan, 426 U.S. at 381 (noting “the virtual absence of
expression of congressional policy or intent respecting [§ 1360’s] grant of
civil jurisdiction to the States”).
10258 K2 AMERICA CORP. v. ROLAND OIL & GAS
Nothing in this section shall authorize the alien-
ation, encumbrance, or taxation of any real or per-
sonal property, including water rights, belonging to
any Indian or any Indian tribe, band, or community
that is held in trust by the United States or is subject
to a restriction against alienation imposed by the
United States; or shall authorize regulation of the use
of such property in a manner inconsistent with any
Federal treaty, agreement, or statute or with any reg-
ulation made pursuant thereto; or shall confer juris-
diction upon the State to adjudicate, in probate
proceedings or otherwise, the ownership or right to
possession of such property or any interest therein.
(Emphasis added.)
[2] The Supreme Court has explained that § 1360(b) “sim-
ply” reaffirmed “the existing reservation Indian-Federal Gov-
ernment relationship in all respects save the conferral of state-
court jurisdiction to adjudicate private civil causes of action
involving Indians.” Bryan v. Itasca Cnty., 426 U.S. 373, 391
(1976) (holding that a state could not impose a tax on reserva-
tion Indians absent congressional intent and that § 1360 did
not confer the power to tax); see also Kirkwood v. Arenas,
243 F.2d 863, 865-66 (9th Cir. 1957) (“[Section 1360(b)] is
entirely consistent with, and in effect is a reaffirmation of, the
law as it stood prior to its enactment . . . .”).
[3] The district court correctly concluded that § 1360(b)
limits the exercise of state jurisdiction; it does not confer
jurisdiction on federal courts. See, e.g., Frazier v. Turning
Stone Casino, 254 F. Supp. 2d 295, 304 (N.D.N.Y. 2003)
(noting that § 1360 concerns state court jurisdiction and does
not support exercising federal question jurisdiction over a
misappropriation action). Although P.L. 280 “necessarily pre-
empts and reserves to the Federal government or the tribe
jurisdiction not so granted,” Santa Rosa Band of Indians v.
Kings Cnty., 532 F.2d 655, 658-59 (9th Cir. 1976), the law
K2 AMERICA CORP. v. ROLAND OIL & GAS 10259
plainly did not confer subject matter jurisdiction upon federal
courts.5
B
Federal courts have original jurisdiction over “all civil
actions arising under the Constitution, laws, or treaties of the
United States.” 28 U.S.C. § 1331. “For a case to ‘arise under’
federal law, a plaintiff’s well-pleaded complaint must estab-
lish either (1) that federal law creates the cause of action or
(2) that the plaintiff’s asserted right to relief depends on the
resolution of a substantial question of federal law.” Peabody
Coal, 373 F.3d at 949 (citing Franchise Tax Bd. v. Constr.
Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983)). Federal
jurisdiction cannot hinge upon defenses or counterclaims,
whether actual or anticipated. Vaden v. Discover Bank, 556
U.S. 49, 129 S. Ct. 1262, 1272 (2009).
5
K2 believes that, because it seeks to be named the lawful owner of the
Allotment Lease, a state court could not decide its claim without “adjudi-
cat[ing] . . . the ownership or right to possession of . . . or any interest”
in “real . . . property . . . belonging to any Indian or any Indian tribe . . .
that is held in trust by the United States.” 28 U.S.C. § 1360(b). We express
no view on K2’s interpretation of § 1360(b), except to note that even if a
state court lacks jurisdiction to award K2 the precise relief it seeks, that
alone does not establish federal court jurisdiction over its claim. Nor does
our holding preclude K2 from seeking relief in Blackfeet Tribal Court. As
a leading treatise has noted, “[t]he nearly unanimous view among tribal
courts, state courts and lower federal courts, state attorneys general, the
Solicitor’s Office for the Department of the Interior, and legal scholars is
that [P.L.] 280 left the inherent civil and criminal jurisdiction of Indian
nations untouched.” F. Cohen, Cohen’s Handbook of Federal Indian Law
560-61 (2005 ed.) (hereinafter Cohen); see, e.g., Native Vill. of Venetie
I.R.A. Council v. Alaska, 944 F.2d 548, 560-62 (9th Cir. 1991) (explaining
that P.L. 280 “is not a divestiture statute” and concluding that it did not
divest tribes of concurrent authority to adjudicate child custody proceed-
ings); Walker v. Rushing, 898 F.2d 672, 675 (8th Cir. 1990) (“Nothing in
the wording of Public Law 280 or its legislative history precludes concur-
rent tribal authority.”).
10260 K2 AMERICA CORP. v. ROLAND OIL & GAS
K2 does not purport to bring a cause of action created by
federal law; it asserts only state tort, contract, and statutory
claims. Nevertheless, K2 maintains that, because 28 U.S.C.
§ 1360(b) “delineates the scope of preemptive federal juris-
diction over lands held in trust for the benefit of Indians,” its
claim does not require a federal statute to confer jurisdiction
on federal courts. Rather, in K2’s view, the complete preemp-
tion doctrine gives the district court subject matter jurisdiction
under 28 U.S.C. § 1331.
1
The “complete preemption” doctrine “applies in select
cases where the preemptive force of federal law is so ‘extraor-
dinary’ that it converts state common law claims into claims
arising under federal law for purposes of jurisdiction.” Hol-
man v. Laulo-Rowe Agency, 994 F.2d 666, 668 (9th Cir.
1993). “Once an area of state law has been completely pre-
empted, any claim purportedly based on that pre-empted state
law is considered, from its inception, a federal claim, and
therefore arises under federal law.” Caterpillar Inc. v. Wil-
liams, 482 U.S. 386, 393 (1987). Because plaintiffs can assert
federal claims if they desire federal jurisdiction, complete pre-
emption normally arises where a defendant removes a state-
law complaint to federal court. Holman, 994 F.2d at 668 n.2.6
Relying on Oneida Indian Nation v. County of Oneida
(Oneida I), 414 U.S. 661 (1974), K2 urges that complete pre-
6
“Complete preemption removal is an exception to the otherwise appli-
cable rule that a plaintiff is ordinarily entitled to remain in state court so
long as its complaint does not, on its face, affirmatively allege a federal
claim.” Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d
941, 945 (9th Cir. 2009) (internal quotation marks omitted). “The general
rule is that a defense of federal preemption of a state-law claim, even con-
flict preemption under [a federal statute], is an insufficient basis for origi-
nal federal question jurisdiction under § 1331(a) and removal jurisdiction
under § 1441(a).” Id. (discussing complete preemption in the ERISA con-
text).
K2 AMERICA CORP. v. ROLAND OIL & GAS 10261
emption generally applies to “disputes involving trust lands.”
We disagree.
[4] Oneida I involved an action by a tribe claiming that a
1795 cession of Indian land to the state of New York was
invalid for lack of federal consent. See id. at 664-65. Charac-
terizing the claim as “essentially a possessory action,” id. at
666, the Supreme Court determined that the tribe claimed its
right to possession “under federal law in the first instance” by
arguing that its aboriginal title—guaranteed by a treaty and
protected by statute—was never extinguished by the United
States, id. at 676.7 Although Oneida I did not speak in terms
of complete preemption, the Court has since characterized the
decision as holding that a “state-law complaint that alleges a
present right to possession of Indian tribal lands necessarily
‘asserts a present right to possession under federal law,’ and
is thus completely pre-empted and arises under federal law.”
Caterpillar, 482 U.S. at 393 n.8 (quoting Oneida I, 414 U.S.
7
The Court stressed that it did not “disturb the well-pleaded complaint
rule of Taylor v. Anderson, 234 U.S. 74 (1914),” and distinguished Taylor
as a suit by individual Indians (rather than a tribe) concerning lands allo-
cated to individuals (rather than to a tribe). Oneida I, 414 U.S. at 676; see
also Cohen, supra, at 613 n.119. The Court likened Taylor to cases “indi-
cating that ‘a controversy in respect of lands has never been regarded as
presenting a Federal question merely because one of the parties to it has
derived his title under an Act of Congress.’ ” Oneida I, 414 U.S. at 676
(quoting Shulthis v. McDougal, 225 U.S. 561, 570 (1912)). In Oneida I,
by contrast, the tribe’s assertion of a federal controversy did “not rest
solely on the claim of a right to possession derived from a federal grant
of title whose scope will be governed by state law” but, rather, “on the not
insubstantial claim that federal law . . . protects, and has continuously pro-
tected from the time of the formation of the United States, possessory
rights to tribal lands, wholly apart from the application of state law princi-
ples which normally and separately protect a valid right of possession.” Id.
at 677. Oneida I and Taylor “stand for the principle that a plaintiff assert-
ing a right to possession of allotted land cannot rest its right to relief (or
its basis for federal jurisdiction) on the bare fact that one of the parties to
it has derived its title under an act of Congress authorizing leases of Indian
owned-property, such as 25 U.S.C. § 416.” San Xavier Dev. Auth. v.
Charles, 237 F.3d 1149, 1154 (9th Cir. 2001).
10262 K2 AMERICA CORP. v. ROLAND OIL & GAS
at 675) (emphasis added); see also Franchise Tax Bd., 463
U.S. at 23 n.25. We likewise have recognized Oneida I as a
“possible additional instance of complete preemption.” Hol-
man, 994 F.2d at 668 n.3; Wayne v. DHL Worldwide Express,
294 F.3d 1179, 1184 n.3 (9th Cir. 2002).
[5] But this case differs markedly from Oneida I, which
“turned on the special historical relationship between Indian
tribes and the Federal Government.” Beneficial Nat’l Bank v.
Anderson, 539 U.S. 1, 8 n.4 (2003). Neither K2 nor Roland
is an Indian party. See id. (“[F]ederal courts have subject-
matter jurisdiction to hear possessory land claims under state
law brought by Indian tribes because of the uniquely federal
‘nature and source of the possessory rights of Indian tribes.’ ”
(quoting Oneida I, 414 U.S. at 667) (emphasis added)); Cnty.
of Oneida v. Oneida Indian Nation (Oneida II), 470 U.S. 226,
236 (1985) (“Oneida I implicitly assumed that the Oneidas
could bring a common-law action to vindicate their aboriginal
rights.”); Pit River Home & Agric. Coop. Ass’n v. United
States, 30 F.3d 1088, 1097 (9th Cir. 1994) (noting that the
“nature and source of the possessory rights of Indian Tribes
to aboriginal lands or lands conferred by treaty, statute, or
other federal government action presents [a] federal question”
(citing Oneida I and II) (emphasis added)); New York v.
White, 528 F.2d 336, 339 (2d Cir. 1975) (refusing to extend
Oneida I to a non-Indian plaintiff); Heirs of Burat v. Bd. of
Levee Comm’rs, 496 F.2d 1336, 1341 (5th Cir. 1974) (same);
13D Charles Alan Wright, Arthur R. Miller, Edward H. Coo-
per, & Richard D. Freer, Federal Practice and Procedure
§ 3566, at 273 n. 23 (3d ed. 2008) (“The [Oneida I] Court was
at great pains to make it clear that it was not modifying the
well-pleaded complaint rule as it applies to land claims by
other than Indians.” (emphasis added)). Nor does K2 claim
ownership of the Allotment Lease under a federal constitu-
tional provision, treaty, or statute, or under federal common
law. See Oneida I, 414 U.S. at 677-78 (explaining that the
tribe grounded its possessory claim in its aboriginal right of
occupancy, treaties, and the Nonintercourse Acts); Oneida II,
K2 AMERICA CORP. v. ROLAND OIL & GAS 10263
470 U.S. at 236 (“[T]he Court’s opinion in Oneida I implicitly
assumed that the Oneidas could bring a common-law action
to vindicate their aboriginal rights.”); see also Littell v. Nakai,
344 F.2d 486, 487-88 (9th Cir. 1965). Though K2 seeks an
interest in real property held in trust by the United States, its
alleged entitlement to the Allotment Lease turns only on state
common law and statutory claims; it does not require interpre-
tation of a federal right. See Oneida I, 414 U.S. at 676.
[6] Given these dissimilarities between K2’s case and
Oneida I, we cannot recognize this as one of the “handful of
‘extraordinary’ situations where even a well-pleaded state law
complaint will be deemed to arise under federal law for juris-
dictional purposes.” Holman, 994 F.2d at 668.
2
[7] Nor is federal jurisdiction available under an alterna-
tive theory of “arising under” jurisdiction (implicit in K2’s
briefing), namely, that by seeking an interest in a “specialized
type of contract that is subject to extensive federal regula-
tion,” Peabody Coal, 373 F.3d at 951, K2’s “right to relief
necessarily depends on resolution of a substantial question of
federal law,” Franchise Tax Bd., 463 U.S. at 28; Peabody
Coal, 373 F.3d at 949.
K2 alludes to the “specific federal statutory and regulatory
scheme governing the lease,” citing 25 U.S.C. § 396 (govern-
ing leases of allotted lands for mining purposes) and 25
C.F.R. pt. 212 (governing oil and gas leases). In Peabody
Coal, we reviewed precedents touching on whether the fed-
eral regulation and approval of a lease gives rise to a federal
question sufficient for “arising under” jurisdiction. 373 F.3d
at 949-52. There, a non-Indian corporation sued to enforce an
arbitration award against the Navajo Nation, under a settle-
ment agreement made between the parties setting royalty rates
for coal mined pursuant to a commercial lease. Id. at 946. The
Department of the Interior had approved the lease, and the
10264 K2 AMERICA CORP. v. ROLAND OIL & GAS
corporation argued that the Secretary’s approval of the lease
amendments, together with the federal regulatory scheme
governing such leases, raised an issue of federal law. Id. at
949. We recognized that oil and gas leases on tribal lands “are
not mere contracts” but, instead, “ ‘represent a very special-
ized subset of contracts’ because of the very extensive federal
regulatory scheme governing them.” Id. at 951 (quoting Com-
stock Oil & Gas Inc. v. Ala. & Coushatta Indian Tribes, 261
F.3d 567, 574-75 (5th Cir. 2001)); see also Comstock Oil &
Gas, 261 F.3d at 574-75 (“[T]his extensive regulatory scheme
demonstrates that tribal oil and gas leases represent a very
specialized subset of contracts and, therefore, compels the
conclusion that they belie characterization as routine con-
tracts. This is a significant distinction.”). That recognition did
not rescue jurisdiction, however, because the corporation
“[did] not allege any problem with the underlying leases or
their amendments.” Peabody Coal, 373 F.3d at 951.8
[8] K2 likewise does not allege any problem with the
underlying Allotment Lease. Examining “the particular facts
of the claim,” id. at 949, K2 does not plead any irregularities
as between the alleged leaseholder (Roland), the lessors
(Blackfeet Tribal members), and the federal government, such
that the validity of the Lease “can be answered only by refer-
ence to federal statutory or common law,” id. at 950; see also
Littell, 344 F.2d at 477-78 (finding no federal question where
a complaint against a tribal chairman for tortious interference
with an employment contract could be resolved by interpret-
ing the contract). For example, K2 does not contest the valid-
ity of federal approval, if any, over the Allotment Lease. See
Gaming World Int’l, Ltd. v. White Earth Band of Chippewa
Indians, 317 F.3d 840, 848 (8th Cir. 2003) (recognizing fed-
eral jurisdiction over whether a contract received valid federal
approval under the Indian Gaming Regulatory Act); Peabody
Coal, 373 F.3d at 950 n.3. To the contrary, K2’s alleged own-
8
Rather, we noted, Peabody sought enforcement of the arbitration
award, which was not federally approved. Id. at 949.
K2 AMERICA CORP. v. ROLAND OIL & GAS 10265
ership of the lease turns on the success of its state common
law and statutory claims, and K2 “understands that the equita-
ble relief it seeks is subject to that government process.” The
mere fact that the Secretary of the Interior must approve oil
and gas leases does not raise a federal question. See Longie
v. Spirit Lake Tribe, 400 F.3d 586, 590 (8th Cir. 2005); Pea-
body Coal, 373 F.3d at 951; cf. Littell, 344 F.3d at 488.
[9] The Supreme Court has cautioned, in the context of
quiet title suits, that the requirement of an actual dispute about
federal law is “ ‘especially’ important in ‘suit[s] involving
rights to land acquired under a law of the United States,’
because otherwise ‘every suit to establish title to land in the
central and western states would so arise [under federal law],
as all titles in those States are traceable back to those laws.’ ”
Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg.,
545 U.S. 308, 316 n.3 (2005) (alterations in original) (quoting
Shulthis v. McDougal, 225 U.S. 561, 569-70 (1912)); accord
Virgin v. Cnty. of San Luis Obispo, 201 F.3d 1141, 1144 (9th
Cir. 2000) (per curiam). Mindful of that warning, we conclude
that K2’s claims do not require the resolution of a substantial
federal question of law sufficient for jurisdiction under 28
U.S.C. § 1331.
3
The district court’s order alluded to the possibility that K2
could sue under 25 U.S.C. § 345, but that provision does not
apply here. Section 345 and its companion statute, 28 U.S.C.
§ 1353,9 concern suits by persons who are “in whole or in part
9
Under 28 U.S.C. § 1353, “[t]he district courts shall have original juris-
diction of any civil action involving the right of any person, in whole or
in part of Indian blood or descent, to any allotment of land under any Act
of Congress or treaty.” Section 1353 is a “recodification of the jurisdic-
tional component of [25 U.S.C.] § 345,” Scholder v. United States, 428
F.2d 1123, 1126 n.2 (9th Cir. 1970), which provides, in turn:
All persons who are in whole or in part of Indian blood or
descent who are entitled to an allotment of land under any law of
10266 K2 AMERICA CORP. v. ROLAND OIL & GAS
of Indian blood or descent.” 25 U.S.C. § 345; 28 U.S.C.
§ 1353; see Johnston v. Staley (In re Condemnation of Land
for State Highway Purposes), 830 F. Supp. 1376, 1379 (D.
Kan. 1993) (“[F]ederal district court jurisdiction under 25
U.S.C. § 345 or 28 U.S.C. § 1353 is predicated on . . . pro-
ceedings . . . involv[ing] the rights of any person who is in
whole or in part of Indian blood or descent.” (footnote omit-
ted)). These provisions do not authorize suit by state corpora-
tions such as K2. See, e.g., United States v. Preston, 352 F.2d
352, 355-56 (9th Cir. 1965) (“There is no claim that the plain-
tiffs in this case are persons of Indian blood nor is this action
one to claim an allotment of land.”)
C
Federal subject matter jurisdiction does not exist over the
present action. K2 stresses the federal government’s “plenary
authority over Indians and their lands,” but presents no basis
for concluding that this action lies within the “limited juris-
diction” of federal courts. See Kokkonen, 511 U.S. at 377.
III
[10] The district court properly dismissed this case for lack
of subject matter jurisdiction. We need not—and do not—
Congress, or who claim to be so entitled to land under any allot-
ment Act or under any grant made by Congress, or who claim to
have been unlawfully denied or excluded from any allotment or
any parcel of land to which they claim to be lawfully entitled by
virtue of any Act of Congress, may commence and prosecute or
defend any action, suit, or proceeding in relation to their right
thereto in the proper district court of the United States . . . .
25 U.S.C. § 345. Section 345 grants district courts subject-matter jurisdic-
tion over two types of cases: (1) “suits seeking the issuance of an allot-
ment,” and (2) “suits involving the interest and rights of the Indian in his
allotment or patent after he has acquired it.” Pinkham v. Lewiston
Orchards Irrigation Dist., 862 F.2d 184, 186 (9th Cir. 1988) (internal quo-
tation marks omitted).
K2 AMERICA CORP. v. ROLAND OIL & GAS 10267
reach any other issues raised by the parties, including exhaus-
tion of tribal remedies.10 We note, though, that our holding
does not preclude K2 from seeking relief in Blackfeet Tribal
Court. See, e.g., Longie, 400 F.3d at 591. “Indeed, there may
be circumstances in which a nonmember plaintiff may have
no forum other than the tribal courts in which to bring his
claims.” Smith v. Salish Kootenai Coll., 434 F.3d 1127, 1140
(9th Cir. 2006) (en banc).
AFFIRMED.
10
See Stock W. Corp. v. Taylor, 964 F.2d 912, 917 (9th Cir. 1992) (en
banc) (“If the district court did not have subject matter jurisdiction, it
lacked the power to enter an abstention order [based on failure to exhaust
tribal remedies].”); Peabody Coal, 373 F.3d at 952; United States ex rel.
Gen. Rock & Sand Corp. v. Chuska Dev. Corp., 55 F.3d 1491, 1492 (10th
Cir. 1995) (“If the case does not clear [the] threshold [of federal subject
matter jurisdiction], any issue as to whether the claims asserted should
have been exhausted first in the tribal courts is academic.”).