668, 669 (1979); Oliphant v. Suquamish Indian Tribe, 435 U.S.
191, 206-07 (1978); Mattz v. Arnett, 412 U.S. 481 (1973). In
virtually all of these cases there was no dispute regarding the
authenticity of the historical materials or facts used to decide
the ultimate issue, see, e.g., Mattz, supra, 412 U.S. at 494.
However, when facts or opinions found in historical materials or
secondary sources are disputed, it is error to accept the data
(however authentic) as evidence, cf. Alvary v. United States,
302 P.2d 790, 794 (2d Cir. 1962) ("It was error for the trial
Judge to take judicial notice of text books that were not a part
of the record"), at least without affording an opposing party
the opportunity to present information which might challenge the
fact or the propriety of noticing it. See 10 J. Moore, Moore's
Federal Practice $201.50 (1976), McCormick, Evidence 708 (1954).
Judicial notice of a disputed fact should not ordinarily be
taken as the basis for dismissal of a complaint on its face. 1
J. Weinstein, supra, 1200[06], at 200-30. The better course 18
to conduct an evidentiary hearing at which the plaintiff may
have its "day in court," and, through time-honored methods, test
the accuracy of defendants' submissions and introduce evidence
of its own.

In the present case evidence of contemporary
construction of the key Articles and surrounding circumstances
relevant to their meaning, of which the district court took
notice, contains statements with respect to factual issues, such
as the understanding of representatives of federal and state
governments and the Oneidas regarding the meaning of the
disputed clauses, the pre-Revolutionary practices of the British
Crown with respect to the matters involved, and the post-
Revolutionary practices of the new federal government and the
states under the clauses.

The district court drew heavily upon

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this extrinsic historical evidence as the basis for its
interpretation of the Articles even though the evidence had not
been the subject of cross-examination or analysis through expert
testimony and may not have been put in perspective by

introduction of other relevant evidence. In short, both sides
and the court appear to have referred to,
relied upon, and
quoted from numerous untested primary and secondary historical
sources, including history books, treatises, and other papers.
We agree with appellants that the district court should not have
granted defendants' Rule 12(b)(6) motion on the basis of this
type of evidence without affording the plaintiffs an evidentiary
hearing in order to clarify the meaning and context of
statements relied on and the weight to be given to them.

More specifically, we believe that the district court
erred in rejecting without an evidentiary hearing the claim that
by Article IX, clause 1, the states delegated to the Continental
Congress the authority to enter into treaties of peace with the
Indian nations which would protect them against extinguishment,
without federal consent, of title to their lands within the
boundaries of a state.15/ It is undisputed that upon
declaring their independence the states gave the new Continental
Congress the sole and exclusive power to declare war upon and to
make peace and alliances with others. Before the Articles of
Confederation were adopted it was the Continental Congress, as
distinguished from the individual states, which on behalf of all
13 colonies declared their independence, organized the
Continental Army under the command of George Washington,
directed its war operations against Great Britain. Congress
also sent representatives to France to negotiate an alliance
with the French monarchy and initiated and controlled relations
with hostile Indian nations. Indeed, the Supreme Court has

and

recognized that these external powers of war and peace devolved directly from the British Crown upon Congress when the latter dissolved the bonds of union with Great Britain and conducted the ensuing Revolutionary War. Worcester v. Georgia, 31 U.S.

(6 Pet.) 515, 558 (1832) (Marshall, C.J.); United States v.
Curtiss-Wright Export Corp., 299 U.S. 304, 316-17 (1936).

"The treaties and laws of the
United States contemplate the Indian
territory as completely separated from
that of the states; and provide that
all intercourse with them shall be
carried on exclusively by the govern-
ment of the Union. Is this the rightful
exercise of power, or is it usurpation?

"While these states were colonies,
this power, in its utmost extent, was
admitted to reside in the crown. When
our revolutionary struggle commenced,
congress was composed of an assemblage
of deputies, acting under specific powers
granted by the legislatures, or conven-
tions of the several colonies. It was a
great popular movement, not perfectly
organized; nor were the respective powers
of those who were intrusted with the
management of affairs accurately defined.
The necessities of our situation
produced a general conviction, that
those measures which concerned all
must be transacted by a body in which
the representatives of all were
assembled, and which could command the
confidence of all; congress, therefore,
was considered as invested with all
the powers of war and peace, and
congress dissolved our connection with
the mother country, and declared these
united colonies to be independent
states. Without any written definition
of powers, they employed diplomatic
agents to represent the United States
at the several courts of Europe; offered
to negotiate treaties with them, and did
actually negotiate treaties with France.
From the same necessity, and on the same
principles, congress assumed the manage-
ment of Indian affairs; first, in the name
of these united colonies; and afterwards,
in the name of the United States. Early
attempts were made at negotiation, and to
regulate trade with them. These not
proving successful, war was carried on,
under.the direction, and with the forces
of the United States, and the efforts to

The same views were echoed by the Supreme Court more

than a century later in United States v. Curtiss-Wright Export

Corp., supra:

"As a result of the separation from
Great Britain by the colonies acting
as a unit, the powers of external
Sovereignty passed from the Crown not
to the colonies severally, but to the
colonies in their collective and corporate
capacity as the United States of America.
Even before the Declaration, the colonies
were a unit in foreign affairs, acting
through a common agency - namely the
Continental Congress, composed of
delegates from the thirteen colonies.
That agency exercised the powers of war
and peace, raised an army, created a
navy,

and finally adopted the Declaration
of Independence.... When, therefore,
the external sovereignty of Great Britain
in respect of the colonies ceased, it
immediately passed to the Union.

"[The] Union declared by the Articles
of Confederation to be 'perpetual,' was the
sole possessor of external sovereignty...
United States v. Curtiss-Wright Export
Corp., supra, 299 U.S. at 316-17 (emphasis
added).

Thus, beginning with the Declaration of Independence and the formation of the Continental Congress the member states had no more power to make war or enter into treaties of peace or alliance than they had had as colonies under the British Crown. The Articles of Confederation appear merely to have confirmed, rather than to have originated, Congress' peace-treating power. In any event, by the time of the Proclamation of 1783 and the 1784 Treaty of Fort Stanwix that authority was vested by Article IX, clause 1, exclusively in the new federal government and under Article XIII, the Supremacy Clause, 16/ treaties

31

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entered into by Congress were binding on the states and
paramount to any conflicting acts on the part of their

legislatures.

supra.

United States v. Curtiss-Wright Export Corp.,

It also appears beyond dispute that the 1784 Treaty of Fort Stanwix with the Six Nations Iroquois Confederacy, which assured the Oneidas possession of the lands on which they were settled, was entered into by the federal government in the exercise of its peace-making powers. Four of the nations (Seneca, Cayuga, Onondaga and Mohawk) had joined the British in the Revolutionary War and two (Oneida and Tuscarora) had sided with Congress. Since these six members of the Iroquois Confederacy were not parties to the 1783 Treaty of Paris, their rights as belligerents and allies, respectively, had not yet been resolved. Considerable authority supports the view that maintenance of peaceful or at least neutral relations with the Six Nations Confederacy was an important factor to the federal government in its conduct of the Revolutionary War, since they were the most powerful of the Indian nations and had had a history of alliance and friendship with the British Crown, as was evidenced by its Proclamation of 1763 and its 1768 Treaty of Fort Stanwix with them, protecting their lands. See B. Graymont, The Iroquois in the American Revolution, 65-72 (1972), and H. Upton, The Everett Report in Historical Perspective, 13-14 (1980). There is also evidence that as late as May 1, 1783, fighting with the Indians continued on the Pennsylvania border. XXIV Jour. of the Cont. Cong. 319, and that in its efforts to make peace with the Indians, Congress' representative (Ephraim Douglas) was prevented by the British at Niagara from delivering Congress' message to the Six Nations but was informed by their representative (Joseph Brant, Mohawk war leader) that