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October 24, 1995

HUNTER, et al, Defendants.

The opinion of the court was delivered by: BRENNAN

 On September 15, 1995, the court heard and considered defendants' motion to dismiss and in the alternative for summary judgment in the above-entitled matter. Plaintiff appeared by its counsel James Joyce and William Hake, and defendants appeared by their counsel Lester Marston. The undersigned reviewed and considered the papers submitted and the arguments of counsel at the hearing.

 Because of the federal courts' inconsistent application of federal common law to actions involving individual Indian tribe members, the undersigned sua sponte questioned jurisdiction over the present action. For the following reasons, the court orders this action dismissed for lack of subject matter jurisdiction.

 I. Facts

 There are only two parties to this action, but three different entities are involved in the underlying events at issue: Round Valley Indian Housing Authority ("RVIHA"), Priscilla and Michael Hunter ("Hunters"), and Coyote Valley Band of Pomo Indians ("Coyote Valley Tribe"). The link between these three groups is as follows: Coyote Valley Tribe and RVIHA purportedly entered into a master lease ("Lease One") which granted the RVIHA permission to build and lease low-income housing on Coyote Valley Tribe trust land. RVIHA built low-income housing on the Coyote Valley Tribe's reservation and rented the units to members of the Coyote Valley Tribe. RVIHA then entered into a residential rental lease ("Lease Two") with the Hunters, who are members of the Coyote Valley Tribe. When the Hunters failed to pay rent, RVIHA filed this action to recover possession of the rental property and damages for rent due and owing. *fn1" Defendants assert, as an affirmative defense, that plaintiff does not have a legal interest in the property because Lease One is invalid for failure to conform to the requirements of 28 U.S.C. section 81. *fn2" If Lease One is invalid, defendants argue, Lease Two also must be invalid.

 RVIHA is an organization approved by the United States Department of Housing and Urban Development ("HUD"). Both parties agree that the Coyote Valley Tribe is a federally recognized tribe which is governed by a General and Tribal Council. *fn3" Neither party disputes that the Hunters took possession of the property and continue to reside there. The Hunters have never paid rent.

 II. Jurisdiction

 Neither party has raised the issue of subject matter jurisdiction; rather, both rely on the district court's decision in All Mission Indian Housing Authority v. Silvas, 680 F. Supp. 330 (C.D.Cal. 1987) which found federal question jurisdiction based on federal common law where an Indian housing authority sought to evict a tenant on Indian trust land. After analyzing the elements which render a case a matter of federal common law, and after reviewing the interests implicated in this action, the undersigned concludes that federal question jurisdiction does not exist here. Since there is no federal question jurisdiction, the action must be dismissed for lack of subject matter jurisdiction. *fn4"

 A. Federal Question Jurisdiction

 Both parties claim that jurisdiction is appropriate under 28 U.S.C. section 1331, which provides:

The district court shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

 Neither party claims that the action arises under the Constitution or a treaty of the United states. Each party, however, states different reasons for finding jurisdiction under section 1331. Defendants claim that federal question jurisdiction is based on their affirmative defense, which derives from the provisions of 28 U.S.C. section 81. Plaintiff contends that federal jurisdiction exists here by virtue of federal common law.

 1. Section 81

 Federal jurisdiction must stem from an element pleaded in plaintiff's complaint. Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152, 53 L. Ed. 126, 29 S. Ct. 42 (1908); American Invs-co Countryside v. Riverdale Bank, 596 F.2d 211 (1979). Therefore the court must look at the well-pleaded complaint to determine whether it supports federal subject matter jurisdiction. Countryside, 596 F.2d at 216 ("Federal question must appear in plaintiff's well-pleaded complaint in order to make the case arise under federal law."). A federal court does not have jurisdiction of a case arising under federal law "if the ...

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