dissenting:
I respectfully dissent.
The implications of the majority’s decision are far reaching and I believe that the decision is wrong. The present dispute involves 871.92 acres of land and a judgment for $16,694, plus interest, for two years’ use thereof, not an unusually significant amount in and of itself. But the court does not specify any limiting principles in this area. I see nothing in the majority’s opinion which, when coupled with our decision in Oneida Indian Nation of New York v. *545New York, 691 F.2d 1070 (2d Cir.1982), would prevent the Oneida or any other tribe from suing for the full value of all land taken from them at any time during our nation’s history in contravention of federal law — to say nothing of the possibility of bringing an action for ejectment. Courts should be reluctant to invite such potentially staggering claims on the skimpy authority relied on today by the majority.
This is not to deny the wrongs that Indian tribes have suffered. They do exist and surely require attention. However, the remedy should not be created by a court of law acting in an environment of legal uncertainty. These are essentially political problems which require a comprehensive solution that the judiciary cannot provide in one sitting.1 Today’s decision is likely to interfere with rather than advance the federal government’s policies towards Indians.
To decide that Indian land claims should be resolved by judicial fiat is not only unwise, it is also unnecessary. The Indian tribes have remedies available without resort to the federal courts. Congress has established administrative procedures to resolve Indian land claims and the federal government can sue in federal court to enforce Indian land rights.2 If the existing federal administrative mechanism is ineffective, the Indians’ proper remedy is not in the federal courts, but rather in Congress.
I
The majority holds today that the Oneida may maintain a direct action to recover damages for wrongful occupancy. Despite the majority’s claim to the contrary, this is truly a novel legal principle. There never has been, and this Court should not now create, a federal common law action. No case has ever held that an Indian tribe may maintain a direct action for damages based upon federal common law.
From the outset of the Union, Indians were considered wards of the United States; the federal government assumed the role of their guardian. See, e.g., United States v. Sandoval, 231 U.S. 28, 46, 34 S.Ct. 1, 7, 58 L.Ed. 107 (1913); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17, 8 L.Ed. 25 (1831) (Marshall, C.J.) (“[Tjhey are in a state of pupilage; their relation to the United States resembles that of a ward to his guardian. They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants ....); cf. United States v. Kagama, 118 U.S. 375, 384, 6 S.Ct. 1109, 1114, 30 L.Ed. 228 (1886) (“From their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the Executive and by Congress, and by this court, whenever the question has arisen.”).
From the special guardianship relation between the United States and the Indian tribes, it can be inferred that the Indians *546should be subject to liabilities under federal law only when Congress sets up a statutory scheme. This has long been settled law. See, e.g., United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 512, 60 S.Ct. 653, 656, 84 L.Ed. 894 (1940) (reaffirming that tribal sovereign immunity is coextensive with that of the United States; “[tjhese Indian Nations are exempt from suit without Congressional authorization.”). Similarly, it follows that their federal rights should also be based on specific congressional acts. Far from a leap of logic, this is equally settled law:
The civil rights incident to States and individuals as recognized by what may be called the “law of the land” have not been accorded either to Indian nations, tribes, or Indians. Whenever they have asserted a legal capacity in the maintenance of their rights, it has been in pursuance of some statute of the United States specially conferring upon them the civil rights of suitors. In all the cases in this court in which the interest of an Indian tribe has been the subject of litigation the proceeding has been under special statute conferring the right upon the claimant to bring a suit. The ordinary jurisdiction as to persons has never been sought to enforce against the United States the fulfillment of their obligations or the discharge of their duties.
Jaeger v. United States, 27 Ct.Cl. 278, 284-85 (1892) (emphasis supplied).3
Special statutes giving Indians the rights of suitors were necessary because it was inconceivable to lawmakers and judges in the era of early American common law that Indian tribes would resort to courts of law to enforce their legal rights. See Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) at 17, 8 L.Ed. 25 (Marshall, C.J.) (“At the time the constitution was framed, the idea of appealing to an American court of justice for an assertion of right or a redress of wrong, had perhaps never entered the mind of an Indian or of his tribe.”). Thus, viewed from a common law perspective, it is apparent that there never existed a federal common law private cause of action for damages.
Assuming arguendo that a federal common law cause of action in favor of the Indians existed, it was preempted by the Trade and Intercourse Acts.
When Congress addresses directly and comprehensively a question previously governed by federal or state common law, that common law is preempted. Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981). While the majority does not dispute this, it finds that Congress did not intend to preempt the field because the Trade and Intercourse Acts were not comprehensive statutes. This explanation ignores existing Supreme Court case law on preemption and improperly addresses the issue of congressional intent.
The majority points out that the Acts “did not speak directly to the question of the Indians’ ability to enforce their possessory rights by an action in ejectment.”4 But Congress need not specifically legislate on a subject in order to preempt a particular field. In Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941), the Supreme Court held a Pennsylvania alien registration statute invalid under the Supremacy Clause partly because the state statute interfered with the federal scheme of registration, even though the state and federal statutes were not explicitly contradictory and there was no express congressional intent to override state legislation. The Court noted that “[ejxperience has shown that international controversies of the greatest moment, sometimes even leading to war,' may arise from real or imagined wrongs to another’s subjects inflicted, or permitted, by a government.” 312 U.S. at *54764, 61 S.Ct. at 402. The Court thus reasoned that state law which potentially conflicted with federal law in this sensitive area had to fall because the federal government was the agent of foreign policy in our country and, as the agent, it had determined that a particular scheme of registration was necessary in order to avoid friction with other nations.
The majority ignores the fact that the legislation at the heart of the instant dispute addresses issues of intergovernmental relations as sensitive as those in Hines. As the majority notes, President Washington and Secretary of War Knox urged congressional protection of Indian lands in order to reassure Indians who had grown “restive.” This protection was provided by the 1790 Act; criminal and other sanctions were added in 1793 in order to put teeth in the 1790 Act. The statutes at issue in Hines and in the instant dispute were passed for the same purpose, to avoid war. There can be no justification for finding preemption of state statutory law in the former case but not preemption of federal common law in the latter. Indeed, the present holding turns the normal presumptions about preemption on their respective heads, as federal courts are usually quicker to find preemption of federal common law than state law. In re Oswego Barge Corp., 664 F.2d 327 (2d Cir.1981). See Illinois v. Outboard Marine Corp., 680 F.2d 473, 478 (7th Cir. 1982).
The majority also tries to determine whether the early congressional scheme was comprehensive from a late twentieth century perspective. But, we must remember that it is the intent of the 2nd Congress which we search for here, not the perceived views of a Congress elected many years later. It is true that the 1790 and 1793 Acts were not comprehensive by today’s standards, but they did proscribe certain acts and provide civil and criminal sanctions. Given the hypertechnical nature of the law in the late 18th century, it is unrealistic to believe that Congress intended to allow remedies concurrent to those explicitly promulgated.
The majority’s reliance on the language in United States v. Santa Fe Pacific Railroad Co., 314 U.S. 339, 354, 62 S.Ct. 248, 255, 86 L.Ed. 260 (1941), is inappropriate, inasmuch as that case involved a mid-19th century statute which allegedly abolished the Indians’ aboriginal rights. There, the Supreme Court was talking about the extinguishment of undisputed title to land, not the preemption of a questionable right of a ward to a private cause of action.
II
The majority states that the Nonintercourse Acts were passed to protect Indian tribes and determines, on the basis of the language cited in Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 374-75, 102 S.Ct. 1825, 1837, 72 L.Ed.2d 182 (1982), that when a statute is enacted in order to benefit a special class of beneficiaries, the judiciary will normally recognize a remedy for class members if the statute was passed prior to Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). Therefore, reasons the majority, when Congress passed the aforementioned Acts it must have intended that the beneficiaries would be able to enforce their rights by a private action. While superficially appealing, this argument lacks the support of either precedent or legislative history. Merrill Lynch does not address the question whether a private cause of action should be implied where Congress has explicitly granted the federal government the power to sue to protect the rights of the particular group benefited by the statute.
The majority is correct that the Acts were passed in order to protect Indian tribes. However, it takes a great leap of logic to suppose that the Congresses that passed the Acts intended the Indian tribes to have a private cause of action for violations of these Acts. It is difficult to believe that at that time Congress would have left it to the courts to imply such a significant and far reaching remedy, particularly when we remember that the Acts were passed in order to avoid war with the Indian tribes. *548Obviously Congress never intended the remedy to be available.
I believe that the lower courts that have assumed a private cause of action for a violation of the Acts, see, e.g., Mashpee Tribe v. New Seabury Corp., 427 F.Supp. 899, 903 (D.Mass.1977); Schaghticoke Tribe of Indians v. Kent School Corp., 423 F.Supp. 780, 784 (D.Conn.1976); Narragansett Tribe of Indians v. Southern Rhode Island Land Development Corp., 418 F.Supp. 798, 805 & n. 3 (D.R.I.1976), are in error. They use neither legislative history nor valid precedent 5 to support their position.
Similarly, the need for private enforcement because of poor government performance in this area should not affect the outcome here. The government’s failure to enforce Indian rights vigorously provides a strong argument for the need for private enforcement. That argument should be made to Congress, however. We should not perform a legislative function. Furthermore, when construing a statute passed in the late 18th century, we should not consider events which transpired, or failed to transpire, in the subsequent 200 years in order to shed light on congressional intent.
The majority states that even under traditional Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), criteria, a private cause of action may be maintained. I believe the opposite conclusion to be the case here.
This case does not satisfy the second prong of the Cort test, namely, whether there is “any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one.” 422 U.S. at 78, 95 S.Ct. at 2088. I believe that congressional silence on this question indicates a desire not to include a private cause of action as a remedy.
The majority states that Congress intended in the 1793 Act to provide “maximum protection” to Indian land. Assuming this to be true, Congress probably never believed private action necessary in order to accomplish maximum protection. The Act provided for criminal sanctions for violations and included a provision authorizing the executive branch to remove violators from Indian land.6 These sanctions if utilized would appear to be full and adequate remedies for the conduct that Congress wished to proscribe. Furthermore, it would have been an easy matter for Congress to provide for a private cause of action in favor of Indian tribes or to expressly continue an existing common law remedy if one existed. The failure to do so indicates to me that Congress either did not wish to enact such a remedy or that it never considered the issue. Either explanation would produce the same result — no private cause of action was intended.
The court’s reference to Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 18-19, 100 S.Ct. 242, 246-247, 62 L.Ed.2d 146 (1979), is inappropriate. There, the Court dealt with a statute, section 215 of the Investment Advisers Act of 1940, that only declared certain contracts void. Neither sanctions, nor remedies, nor any mechanism for voiding contracts were explicitly provided. By contrast, the 1790 Act, as amended by the Act of 1793, did explicitly provide sanctions and an enforcement mechanism. Indeed, these later enforcement provisions were included because the 1790 Act lacked them.
By contrast, the instant dispute is analogous to the claim in Transamerica for a private cause of action under section 206 of the Investment Advisers Act. Congress expressly provided judicial and administrative means to enforce section 206 rights, including criminal penalties and authorization to the SEC to enjoin compliance with the Act. 444 U.S. at 20,100 S.Ct. at 247. The Court stated that “[i]n view of these express pro*549visions for enforcing the duties imposed by § 206, it is highly improbable that ‘Congress absentmindedly forgot to mention an intended private action.’ ” Id. (citation omitted). As the Supreme Court noted, “[I]t is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it. ‘When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.’ ” Id. at 19-20, 100 S.Ct. at 247 (citation omitted).
The same reasoning is applicable to the present case. Because Congress explicitly provided for remedies and sanctions in the 1793 Act, it is “highly improbable” that it forgot to include a private cause of action. This is particularly true in view of the importance that Congress and the President placed on the matter of Indian affairs in the 1790s.
The majority’s characterization of the 1822 Act is not convincing. The provision in the 1822 Act referring to Indians as parties does not only make sense, as the majority claims, “if Congress had intended the Trade and Intercourse Acts to authorize Indians to appear as plaintiffs to enforce the Acts, as well as to be defendants.” This provision also applies to a suit in which the government seeks to enforce Indians’ rights on their behalf. See Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17, 8 L.Ed. 25 (1831). In such a case, the Indians in question would be the real parties in interest. Congress could have been indicating that in this type of action the burden of proof would not be on the government as plaintiff-guardian.
In sum, I believe there is no basis upon which the majority can imply a private cause of action by Indians to recover damages for wrongful possession. To hold otherwise is a novel proposition of law, with consequences too broad to be established on such shaky grounds. Demands for redress of violations of the Acts are better directed to the other branches of the federal government.
I would reverse and remand with directions to dismiss the complaint.
. The Indian tribes are considered sovereigns “which, by government structure, culture, and source of sovereignty, are in many ways foreign to the constitutional institutions of the Federal and State Governments.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 71, 98 S.Ct. 1670, 1683, 56 L.Ed.2d 106 (1978); see also Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 139-40, 102 S.Ct. 894, 902-03, 71 L.Ed.2d 21 (1982); United States v. Wheeler, 435 U.S. 313, 322-23, 98 S.Ct. 1079, 1085-86, 55 L.Ed.2d 303 (1978). Relations with Indian tribes can thus be analogized to relations with foreign nations. The Supreme Court has shown great reluctance to interfere with or take actions that might embarrass the federal political branches’ conduct of foreign affairs, see, e.g., Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 697, 96 S.Ct. 1854, 1863, 48 L.Ed.2d 301 (1976) (plurality opinion); First Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 767, 92 S.Ct. 1808, 1813, 32 L.Ed.2d 466 (1972) (plurality opinion); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 431-33, 84 S.Ct. 923, 941-43, 11 L.Ed.2d 804 (1964); Mexico v. Hoffman, 324 U.S. 30, 35, 65 S.Ct. 530, 532, 89 L.Ed. 729 (1945); The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 146, 3 L.Ed. 287 (1812) (Marshall, C.J.).
. See United States v. Santa Fe Pacific R.R. Co., 314 U.S. 339, 62 S.Ct. 248, 86 L.Ed. 260 (1941); United States v. Candelaria, 271 U.S. 432, 46 S.Ct. 561, 70 L.Ed. 1023 (1926); Cramer v. United States, 261 U.S. 219, 43 S.Ct. 342, 67 L.Ed. 622 (1923).
. See Karrahoo v. Adams, 14 F.Cas. 134 (C.C. D.Kan.1870) (No. 7,614) (Federal circuit court had no jurisdiction in a case involving a non-citizen Indian whose complaint did not raise a federal question).
. It is not surprising that the Act did not expressly refer to an “existing” federal common law right. Of all the cases cited by the majority to indicate the existence of such a cause of action, not one was decided before 1793.
. These cases all rest upon decisions that recognized a private right of action to Indians when the United States had the power to sue on the same cause of action and to seek the same relief. They do not support the proposition that if the government has a statutorily based power to pursue a remedy, the Indians may bring their own action for a different remedy that does not arise out of the same statute.
. See Majority op. n. 12.