dissenting:
I respectfully dissent. I am unable to join the majority opinion because I am not convinced that we have jurisdiction of the Bands’ efforts to enforce the terms of their Tribal-State compacts.
“Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994) (citations omitted). Neither the Constitution nor any federal statute confers the federal courts with jurisdiction of the Bands’ efforts to enforce Paragraph 19 of their compacts with the State of California. As a result, I would vacate the district court’s judgment and remand with instructions to enter judgment in favor of the Bands on the issue presented by their original complaint.
The majority finds federal jurisdiction of the Bands’ efforts to enforce the terms of the compacts pursuant to 28 U.S.C. §§ 1331 and 1362, which each confer federal jurisdiction of claims “arising under” the laws of the United States. Following the reasoning adopted by the district court, the majority concludes that such jurisdiction is “necessarily conferfred]” by the Indian Gaming Regulatory Act of 1988 (“IGRA”), 25 U.S.C. §§ 2701-21. However, as the majority implicitly recognizes, IGRA does not contain a provision which expressly grants federal jurisdiction of a dispute arising under a Tribal-State compact. Instead, the majority concludes that IGRA created federal jurisdiction over the Bands’ claims because otherwise a state could make “empty promises” and the Bands would be unable to enforce the terms of the agreement in federal court.
When this lawsuit was originally filed in district court, it presented an issue that was unquestionably within the jurisdiction of the federal courts. After our remand, however, the issues presented by this case transformed into something altogether different. No longer was the question whether the State’s license fee was permissible under federal law; rather, the district court was asked to determine what rights the parties had under the terms of their Tribal-State compacts and to enforce those rights. As I understand the issues, IGRA is wholly irrelevant to this latter dispute. While IGRA created the Tribal-State compacting process, it does nothing to determine the compact-related rights and obligations of the Bands and the State. The answers to these ques*1063tions necessarily lie in the language of the compact itself.
In fact, it was the language of the compacts which led to our decision in Cabazon Band of Mission Indians v. Wilson, 37 F.3d 430 (9th Cir.1994) (“Cabazon II ”), where we held that IGRA preempts the State from collecting its customary license fee on wagers placed at the Bands’ offtrack betting facilities. My reading of that' opinion convinces me that the State and the Bands could have formulated a Tribal-State compact which would have allowed the State to collect its license fee. Our analysis in Cabazon II relies heavily on Paragraph 19 of the Bands’ compacts with the State to reach the conclusion that IGRA preempts the State from imposing its license fees on the Bands. See id. at 434. A compact without such a provision may not have created the preemption problem which led us to hold that the State could not collect its customary license fee. The fact that the compact contains this provision does not mean that the Bands’ present efforts to enforce the compacts arise under federal law.
The principal authority the majority cites in its jurisdictional analysis is abstract language from a footnote in the Supreme Court’s decision in Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). I do not find this authority persuasive for two reasons. First, Merrell Dow dealt with a far different jurisdictional problem than the one presented by the present ease. There, the plaintiffs alleged that the defendant’s misbranding of a drug in violation of the Federal Food, Drug, and Cosmetic Act (“FDCA”) established a rebuttable presumption of negligence in their state law product liability action. The defendant attempted to remove the action to federal court, asserting that the plaintiffs’ reliance on the defendant’s violation of the FDCA created federal jurisdiction. The Supreme Court, holding that the district court did not have removal jurisdiction, found that the lack of a private right of action under the FDCA was dispositive as to whether the plaintiffs negligence arose under federal law. Id. at 817, 106 S.Ct. at 3236-37.
Our ease is quite different. We must de-eide whether we have jurisdiction of a dispute about an agreement executed pursuant to a federal law (IGRA) that authorized two sovereigns (a state and an Indian tribe) to enter into such an agreement. As a result, I can’t see how the core of Merrell Dow’s analysis is germane to our resolution of this issue.
Second, although I recognize that footnote 12 of the Merrell Dow decision contains language which suggests that an evaluation of the “nature of the federal interest” is at the heart of determining whether there is federal question jurisdiction, I do not believe the majority performs this evaluation correctly. The majority, at least in my view, is rather terse when it reaches the conclusion that the nature of the federal interest in this case is substantial enough to warrant concluding that IGRA confers jurisdiction of the Bands’ compact enforcement claims to the federal courts. What is the federal interest in these claims? That the Bands would be unable to enforce the terms of the compacts? If so, what inference do we draw from the fact that Congress did not expressly provide for federal court jurisdiction of such a claim?
Thus, I turn to the core of the opinion’s jurisdictional analysis: “We agree that Congress, in passing IGRA, did not create a mechanism whereby states can make empty promises to Indian tribes during good-faith negotiations of Tribal-State compacts, knowing that they may repudiate them with immunity whenever it serves their purpose.” Opinion at 11043. I think that this argument-that Congress must have meant to create federal court jurisdiction of these claims-is flawed.
IGRA expressly confers federal jurisdiction of the following: (1) any cause of action initiated by an Indian tribe that the state refuses to enter into good faith negotiations for the purpose of entering into a Tribal-State compact; (2) any cause of action initiated by a state or Indian tribe to enjoin Class III gaming located on Indian lands and conducted in violation of a Tribal-State compact; and (3) any cause of action initiated by the Secretary of the Interior to enforce the mediation procedures which go into effect if *1064an Indian tribe and a state are unable to complete a compact. 25 U.S.C. § 2710(d)(7)(A)(i)-(iii).
Obviously, the Bands’ efforts to enforce the terms of their compacts with the State does not fit any of these three categories. Congress’s jurisdictional grant was both quite specific and quite narrow. Even though it granted federal jurisdiction of disputes arising during the compact negotiation process, Congress expressly chose not to confer federal jurisdiction of compact enforcement claims. The majority’s conclusion that we have jurisdiction of the Bands’ efforts to enforce the compacts ignores this undisputable indication of Congressional intent. In so doing, the majority ignores the possibility that Congress may have wilfully left jurisdiction of these claims to another forum.
In sum, I am not convinced by the district court’s “IGRA is not so vacuous” argument. I think it is just as likely that Congress deliberately left jurisdiction of compact-related claims to the tribal and state court systems. Both the tribal and state court systems would have jurisdiction of an action to enforce the terms of the tribal-state agreements.1 Given IGRA’s silence, I think the holdings of the Supreme Court (M err ell Dow included) require us to conclude that there is no federal question jurisdiction of the Bands’ claims.
Similarly, I am not convinced by the majority’s effort to distinguish Gila River Indian Community v. Henningson, Durham & Richardson, 626 F.2d 708 (9th Cir.1980). The majority subtly attempts to narrow Gila River’s holding by suggesting that it is limited to “run-of-the-mill” contract claims brought by Indian tribes. I cannot agree because I think Gila River is almost directly on point.
In Gila River, we held that the district court lacked jurisdiction of an Indian tribe’s lawsuit against an architectural firm and building contractor for the alleged negligent design and construction of a youth center.
The Indian tribe argued that federal common law should govern all Indian contracts, pointing out that federal statutes already regulated certain Indian contracts. We rejected this argument:
We see no reason why commercial agreements between tribes and private citizens cannot be adequately protected by well-developed state contract laws. Nor has the tribe pointed out why national uniformity of rules governing these transactions would be desirable. Adoption of state law in such cases does not present a conflict with the federal policy or interest in protection of Indian tribes. Nor has any other court perceived the need for federal common law rules governing contract disputes between Indian tribes and non-Indians. The absence of the United States as a party to the litigation is also a factor in determining the need for a federal common law rule.
Id. at 715 (citations omitted).
By its decision today, the majority does violence to the spirit of this decision. Gila River established that just because an Indian contract must meet with certain requirements set forth in a federal statute does not mean that the federal courts have jurisdiction of any dispute arising under that contract. We noted in Gila River that the Indian tribe did not seek recovery for damage to their land, but rather sought “recovery of damages for failure to perform a construction contract.” Id. at 714. Similarly, the Bands seek recovery for breach of the Tribal-State compacts, not violation of IGRA or any other federal law. Although IGRA regulates the formation of Tribal-State compacts to a certain degree, I see no reason for the federal courts to become the arbiter of any and all disputes that may arise out of such a compact.
The majority also suggests that jurisdiction of the Bands’ compact enforcement claims can be found in § 2710(d)(3)(C)(v), which provides authorization for Tribal-State compacts to provide remedies for breach of *1065contract. This provision, however, says nothing about federal court jurisdiction of these breach of contract claims. Although the majority is correct that the parties could agree to waive their respective immunities, a long line of authority establishes that federal jurisdiction may not be conferred by such an agreement if it does not independently exist. See, e.g., Morongo Band of Mission Indians v. California State Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir.1988) (“The parties have no power to confer jurisdiction on the district court by agreement or consent.”); see also E. Chemerinksy, Federal Jurisdiction § 5.1, at 249 (2d ed. 1994) (“[F]ederal court jurisdiction cannot be gained by consent of the parties.”).
Finally, as an alternative basis for jurisdiction, the majority asserts we have jurisdiction because the Bands are seeking to recover money taken by the State in violation of federal law. I cannot agree. As I view it, the Bands seek nothing more than the enforcement of their Tribal-State compacts. Paragraph 19 of the compacts calls for the State to pay the Bands the disputed license fees as a result of our decision in Cabazon II, where we held that the State’s license fees were preempted by federal law. Despite the fact that our resolution of that question was based on federal law, the Bands’ efforts to obtain a judgment ordering the State to pay over the disputed license fees do not “arise under” the laws of the United States. Instead, they rely only on the terms of their Tribal-State compacts.
We federal judges must jealously protect our increasingly limited resources by ensuring that we adjudicate only those matters that we are authorized to hear by Congress and the Constitution. Here, we unquestionably had federal question jurisdiction of the legal issue presented in the Bands’ original complaint, viz., whether the State’s license fee on off-track betting was permissible under IGRA However, when the district court failed to execute our instructions “to enter summary judgment for the Bands,” Cabazon II, 37 F.3d at 435, this case began to present new and different issues of which we do not have jurisdiction. As a result, I respectfully dissent from the majority’s decision to affirm the district court’s order directing the State to pay the Bands’ accumulated and future license fees.
. A well-drafted Tribal-State compact could contain the necessary waivers of sovereign immunity to provide a forum in which the compacts could be enforced. Here, of course, the Bands could bring an action in a California Superior Court to enforce the terms of their agreement with the state. By doing so, of course, they would be waiving any claim of sovereign immunity.