This civil case was brought in the United States District Court for the District of South Dakota to recover, on behalf of the United States and the plaintiff, federally appropriated funds allegedly improperly spent by defendants. 25 U.S.C. § 450d.

On April 4, 1978, the federal district court filed an order which stated: "It appearing that 25 U.S.C. § 450d is a criminal statute and that Plaintiff, therefore, has no standing to bring suit under its provisions, Defendant's Motion to Dismiss is hereby granted." The sole issue on appeal is whether the district court erred in that holding.

Admitting that "(t)he issue herein is subject matter jurisdiction," plaintiff contends 25 U.S.C. § 450d1 is both civil and criminal, and thus the district court does have jurisdiction. Plaintiff argues that because the word "penalties" appears in the heading of 25 U.S.C. § 450d plaintiff's civil action Qui tam is specifically authorized by 25 U.S.C. § 201,2 which "provides that an action to recover * * * civil penalties imposed by Title 25, U.S.C. may be brought either by a private person as an informer or by the government. If an informer sues and recovers, he is entitled to retain one-half of the recovery with the other half being paid over to the government." United States ex rel. Chase v. Wald, 557 F.2d 157, 159 (8th Cir.), Cert. denied, 434 U.S. 1002, 98 S. Ct. 647, 54 L. Ed. 2d 498 (1977). Whether a penalty may be enforced by a civil action brought by a private citizen or only by a criminal suit prosecuted by the government is a matter of legislative discretion, direction, and intent, and if a statute contemplates recovery only by a criminal proceeding, a civil remedy cannot be adopted. United States v. Regan, 232 U.S. 37, 43, 34 S. Ct. 213, 58 L. Ed. 494 (1914); Bass Angler Sportsman Soc'y v. United States Steel Corp., 324 F. Supp. 412, 415-16 (D.Ala.), Aff'd, 447 F.2d 1304 (5th Cir. 1971). We find that Congress intended section 450d to create criminal penalties,3 so that no private right of action exists to enforce this provision.

Plaintiff alleges no other basis for federal jurisdiction. Neither the courts nor the parties may confer federal jurisdiction; and even though nonjurisdictional defects may be waived, the requirement of subject matter jurisdiction cannot be waived by the parties or ignored by the courts. California v. LaRue, 409 U.S. 109, 113 n. 3, 93 S. Ct. 390, 34 L. Ed. 2d 342 (1972); United States v. Redstone, 488 F.2d 300, 301 (8th Cir. 1973).

That the action was filed Qui tam4 does not alter our decision. No common law right to maintain Qui tam actions exists and authority to file such actions must be found in legislation. Connecticut Action Now, Inc. v. Roberts Plating Co., Inc., 457 F.2d 81, 84 (2d Cir. 1972). Where sanctions for violation of a statute are clearly criminal, they are beyond the scope of Qui tam proceedings. Gerbing v. I.T.T. Rayonier Inc.,332 F.Supp. 309, 310 (M.D.Fla.1971).

The dismissal by the district court for lack of jurisdiction is affirmed.