Opinion

Menominee Indian Tribe of Wisconsin v. Tommy G. Thompson

  • 161 F.3d 449
  • 29 Envtl. L. Rep. (Envtl. Law Inst.) 20312
  • 1998 U.S. App. LEXIS 28795
  • 1998 WL 797196
Court
Court of Appeals for the Seventh Circuit
Filed
Nov 17, 1998
Status
Published
Author
Wood
On the bench
Cummings, Wood, Coffey
Cited by
138 cases

stating that a court may “take judicial notice of historical documents, documents contained in the public record, and reports of administrative bodies . . . . “ and that a court may “consider [such] judicially noticed documents without converting a motion to dismiss into a motion for summary judgment.”

How later courts described this case

  • stating that a court may “take judicial notice of historical documents, documents contained in the public record, and reports of administrative bodies . . . . “ and that a court may “consider [such] judicially noticed documents without converting a motion to dismiss into a motion for summary judgment.”
  • holding that it is proper to consider matters not in the plaintiff’s complaint but that are subject to judicial notice; that is, historical documents, documents contained in the public record, and reports of administrative bodies.
  • holding it is proper to consider matters not in the plaintiff’s complaint but that are subject to judicial notice; that is, historical documents, documents contained in the public record, and reports of administrative bodies.
  • finding, in the context of a motion to dismiss, that “[j]udicial notice of historical documents, documents contained in the public record, and reports of administrative bodies is proper”

Written by the judges who cited it.

The opinion

HARLINGTON WOOD, JR., Circuit Judge,

concurring.

I write separately not out of dissatisfaction with the result reached in the foregoing opinion, but only to express some personal thoughts.

Cases involving Native Americans are not taken lightly, but are given the most conscientious thought and study. The policies enumerated and applied by the Supreme Court and other courts are based on history and fairness. There is understanding of the unique legal status of Native Americans in our society, and full appreciation of all their contributions to life and culture in this modern America.

We do not write today, however, on a blank slate, but one covered with history, the words and circumstances of the treaty entered into as well as other subsequent events mentioned in the opinion. It is no surprise that some Native Americans of this generation are dissatisfied with what their prior generations agreed to in order to resolve *463 their problems of earlier times. Times change and people change, but treaties do not. In certain instances where there appear to have been misunderstandings resulting from the negotiations between two different cultures, a reasonable remedy can be judicially authorized. The present case, however, is clear as to what both parties sought to accomplish, and did. The Native Americans reaffirmed their intentions and understanding of the treaty by their subsequent acts and litigation.

In our consideration of the past we cannot ignore or abandon what clearly resulted from the mutual efforts of the parties, nor can we renegotiate or rewrite the treaty or history, nor can we erase other relevant factors from the slate in order to satisfy this present generation. Our responsibilities neither permit more nor are we capable of more.

My concern with this appeal has been whether or not the allowance of the motion to dismiss, in contrast with the summary judgment procedure or a trial on the merits, was an appropriate disposition. After an independent examination of the law and the facts I conclude that the case was properly decided by the district judge who gave careful attention to all its aspects. Nothing suggests that there is anything significant which might possibly be added to the full consideration which this case has received.

I, therefore, concur.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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