Herrera v. Wyoming , 203 L. Ed. 2d 846 ( 2019 )

(Slip Opinion) OCTOBER TERM, 2018 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
HERRERA v. WYOMING
CERTIORARI TO THE DISTRICT COURT OF WYOMING,
SHERIDAN COUNTY
No. 17–532. Argued January 8, 2019—Decided May 20, 2019
An 1868 treaty between the United States and the Crow Tribe prom-
ised that in exchange for most of the Tribe’s territory in modern-day
Montana and Wyoming, its members would “have the right to hunt
on the unoccupied lands of the United States so long as game may be
found thereon . . . and peace subsists . . . on the borders of the hunt-
ing districts.” 15 Stat. 650. In 2014, Wyoming charged petitioner
Clayvin Herrera with off-season hunting in Bighorn National Forest
and being an accessory to the same. The state trial court rejected
Herrera’s argument that he had a protected right to hunt in the for-
est pursuant to the 1868 Treaty, and a jury convicted him. On ap-
peal, the state appellate court relied on the reasoning of the Tenth
Circuit’s decision in Crow Tribe of Indians v. Repsis, 73 F. 3d 982—
which in turn relied upon this Court’s decision in Ward v. Race
Horse, 163 U. S. 504—and held that the treaty right expired upon
Wyoming’s statehood. The court rejected Herrera’s argument that
this Court’s subsequent decision in Minnesota v. Mille Lacs Band of
Chippewa Indians, 526 U. S. 172, repudiated Race Horse and there-
fore undercut the logic of Repsis. In any event, the court concluded,
Herrera was precluded from arguing that the treaty right survived
Wyoming’s statehood because the Crow Tribe had litigated Repsis on
behalf of itself and its members. Even if the 1868 Treaty right sur-
vived Wyoming’s statehood, the court added, it did not permit Herre-
ra to hunt in Bighorn National Forest because the treaty right ap-
plies only on unoccupied lands and the national forest became
categorically occupied when it was created.
Held:
1. The Crow Tribe’s hunting rights under the 1868 Treaty did not
expire upon Wyoming’s statehood. Pp. 6–17.
2 HERRERA v. WYOMING
Syllabus
(a) This case is controlled by Mille Lacs, not Race Horse. Race
Horse concerned a hunting right guaranteed in an 1868 treaty with
the Shoshone and Bannock Tribes containing language identical to
that at issue here. Relying on two lines of reasoning, the Race Horse
Court held that Wyoming’s admission to the United States in 1890
extinguished the Shoshone-Bannock Treaty right. First, the doctrine
that new States are admitted to the Union on an “equal footing” with
existing States led the Court to conclude that affording the Tribes a
protected hunting right lasting after statehood would conflict with
the power vested in those States—and newly shared by Wyoming—
“to regulate the killing of game within their borders.” 163 U. S., at
514. Second, the Court found no evidence in the Shoshone-Bannock
Treaty itself that Congress intended the treaty right to continue in
“perpetuity.” Id., at 514–515. Mille Lacs undercut both pillars of
Race Horse’s reasoning. Mille Lacs established that the crucial in-
quiry for treaty termination analysis is whether Congress has “clear-
ly express[ed]” an intent to abrogate an Indian treaty right, 526
U. S., at 202, or whether a termination point identified in the treaty
itself has been satisfied, id., at 207. Thus, while Race Horse “was not
expressly overruled” in Mille Lacs, it “retain[s] no vitality,” Limbach
v. Hooven & Allison Co., 466 U. S. 353, 361, and is repudiated to the
extent it held that treaty rights can be impliedly extinguished at
statehood. Pp. 6–11.
(b) Repsis does not preclude Herrera from arguing that the 1868
Treaty right survived Wyoming’s statehood. Even when the elements
of issue preclusion are met, an exception may be warranted if there
has been an intervening “ ‘change in [the] applicable legal context.’ ”
Bobby v. Bies, 556 U. S. 825, 834. Here, Mille Lacs’ repudiation of
Race Horse’s reasoning—on which Repsis relied—justifies such an ex-
ception. Pp. 11–13.
(c) Applying Mille Lacs, Wyoming’s admission into the Union did
not abrogate the Crow Tribe’s off-reservation treaty hunting right.
First, the Wyoming Statehood Act does not show that Congress
“clearly expressed” an intent to end the 1868 Treaty hunting right.
See 526 U. S., at 202. There is also no evidence in the treaty itself
that Congress intended the hunting right to expire at statehood, or
that the Crow Tribe would have understood it to do so. Nor does the
historical record support such a reading of the treaty. The State
counters that statehood, as a practical matter, rendered all the lands
in the State occupied. Even assuming that Wyoming presents an ac-
curate historical picture, the State, by using statehood as a proxy for
occupation, subverts this Court’s clear instruction that treaty-
protected rights “are not impliedly terminated upon statehood.” Id.,
at 207. To the extent that the State seeks to rely on historical evi-
Cite as: 587 U. S. ____ (2019) 3
Syllabus
dence to establish that all land in Wyoming was functionally “occu-
pied” by 1890, its arguments fall outside the question presented and
are unpersuasive in any event. Pp. 13–17.
2. Bighorn National Forest did not become categorically “occupied”
within the meaning of the 1868 Treaty when the national forest was
created. Construing the treaty’s terms as “ ‘they would naturally be
understood by the Indians,’ ” Washington v. Washington State Com-
mercial Passenger Fishing Vessel Assn., 443 U. S. 658, 676, it is clear
that the Tribe would have understood the word “unoccupied” to de-
note an area free of residence or settlement by non-Indians. That in-
terpretation follows from several cues in the treaty’s text. For exam-
ple, the treaty made the hunting right contingent on peace “among
the whites and Indians on the borders of the hunting districts,” 15
Stat. 650, thus contrasting the unoccupied hunting districts with ar-
eas of white settlement. Historical evidence confirms this reading of
“unoccupied.” Wyoming’s counterarguments are unavailing. The
Federal Government’s exercise of control and withdrawing of the for-
est lands from settlement would not categorically transform the terri-
tory into an area resided on or settled by non-Indians; quite the oppo-
site. Nor would mining and logging of the forest lands prior to 1897
have caused the Tribe to view the Bighorn Mountains as occupied.
Pp. 17–21.
3. This decision is limited in two ways. First, the Court holds that
Bighorn National Forest is not categorically occupied, not that all
areas within the forest are unoccupied. Second, the state trial court de-
cided that Wyoming could regulate the exercise of the 1868 Treaty
right “in the interest of conservation,” an issue not reached by the
appellate court. The Court also does not address the viability of the
State’s arguments on this issue. Pp. 21–22.
Vacated and remanded.
SOTOMAYOR, J., delivered the opinion of the Court, in which GINS-
BURG, BREYER, KAGAN, and GORSUCH, JJ., joined. ALITO, J., filed a dis-
senting opinion, in which ROBERTS, C. J., and THOMAS and KAVANAUGH,
JJ., joined.
Cite as: 587 U. S. ____ (2019) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–532
_________________
CLAYVIN HERRERA, PETITIONER v. WYOMING
ON WRIT OF CERTIORARI TO THE DISTRICT COURT OF
WYOMING, SHERIDAN COUNTY
[May 20, 2019]
JUSTICE SOTOMAYOR delivered the opinion of the Court.
In 1868, the Crow Tribe ceded most of its territory in
modern-day Montana and Wyoming to the United States.
In exchange, the United States promised that the Crow
Tribe “shall have the right to hunt on the unoccupied
lands of the United States so long as game may be found
thereon” and “peace subsists . . . on the borders of the
hunting districts.” Treaty Between the United States of
America and the Crow Tribe of Indians (1868 Treaty), Art.
IV, May 7, 1868, 15 Stat. 650. Petitioner Clayvin Herrera,
a member of the Tribe, invoked this treaty right as a
defense against charges of off-season hunting in Bighorn
National Forest in Wyoming. The Wyoming courts held
that the treaty-protected hunting right expired when
Wyoming became a State and, in any event, does not
permit hunting in Bighorn National Forest because that
land is not “unoccupied.” We disagree. The Crow Tribe’s
hunting right survived Wyoming’s statehood, and the
lands within Bighorn National Forest did not become
categorically “occupied” when set aside as a national
reserve.
2 HERRERA v. WYOMING
Opinion of the Court
I
A
The Crow Tribe first inhabited modern-day Montana
more than three centuries ago. Montana v. United States,
450 U. S. 544, 547 (1981). The Tribe was nomadic, and its
members hunted game for subsistence. J. Medicine Crow,
From the Heart of the Crow Country 4–5, 8 (1992). The
Bighorn Mountains of southern Montana and northern
Wyoming “historically made up both the geographic and
the spiritual heart” of the Tribe’s territory. Brief for Crow
Tribe of Indians as Amicus Curiae 5.
The westward migration of non-Indians began a new
chapter in the Tribe’s history. In 1825, the Tribe signed a
treaty of friendship with the United States. Treaty With
the Crow Tribe, Aug. 4, 1825, 7 Stat. 266. In 1851, the
Federal Government and tribal representatives entered
into the Treaty of Fort Laramie, in which the Crow Tribe
and other area tribes demarcated their respective lands.
Montana, 450 U. S., at 547–548. The Treaty of Fort
Laramie specified that “the tribes did not ‘surrender the
privilege of hunting, fishing, or passing over’ any of the
lands in dispute” by entering the treaty. Id., at 548.
After prospectors struck gold in Idaho and western
Montana, a new wave of settlement prompted Congress to
initiate further negotiations. See F. Hoxie, Parading
Through History 88–90 (1995). Federal negotiators, in-
cluding Commissioner of Indian Affairs Nathaniel G.
Taylor, met with Crow Tribe leaders for this purpose in
1867. Taylor acknowledged that “settlements ha[d] been
made” upon the Crow Tribe’s lands and that their “game
[was] being driven away.” Institute for the Development
of Indian Law, Proceedings of the Great Peace Commis-
sion of 1867–1868, p. 86 (1975) (hereinafter Proceedings).
He told the assembled tribal leaders that the United
States wished to “set apart a tract of [Crow Tribe] country
as a home” for the Tribe “forever” and to buy the rest of
Cite as: 587 U. S. ____ (2019) 3
Opinion of the Court
the Tribe’s land. Ibid. Taylor emphasized that the Tribe
would have “the right to hunt upon” the land it ceded to
the Federal Government “as long as the game lasts.” Ibid.At the convening, Tribe leaders stressed the vital im-
portance of preserving their hunting traditions. See id., at
88 (Black Foot: “You speak of putting us on a reservation
and teaching us to farm. . . . That talk does not please us.
We want horses to run after the game, and guns and
ammunition to kill it. I would like to live just as I have
been raised”); id., at 89 (Wolf Bow: “You want me to go on
a reservation and farm. I do not want to do that. I was
not raised so”). Although Taylor responded that “[t]he
game w[ould] soon entirely disappear,” he also reassured
tribal leaders that they would “still be free to hunt” as
they did at the time even after the reservation was created.
Id., at 90.
The following spring, the Crow Tribe and the United
States entered into the treaty at issue in this case: the
1868 Treaty. 15 Stat. 649. Pursuant to the 1868 Treaty,
the Crow Tribe ceded over 30 million acres of territory to
the United States. See Montana, 450 U. S., at 547–548;
Art. II, 15 Stat. 650. The Tribe promised to make its
“permanent home” a reservation of about 8 million acres
in what is now Montana and to make “no permanent
settlement elsewhere.” Art. IV, 15 Stat. 650. In exchange,
the United States made certain promises to the Tribe,
such as agreeing to construct buildings on the reservation,
to provide the Tribe members with seeds and implements
for farming, and to furnish the Tribe with clothing and
other goods. 1868 Treaty, Arts. III–XII, id., at 650–652.
Article IV of the 1868 Treaty memorialized Commissioner
Taylor’s pledge to preserve the Tribe’s right to hunt off-
reservation, stating:
“The Indians . . . shall have the right to hunt on the
unoccupied lands of the United States so long as game
4 HERRERA v. WYOMING
Opinion of the Court
may be found thereon, and as long as peace subsists
among the whites and Indians on the borders of the
hunting districts.” Id., at 650.
A few months after the 1868 Treaty signing, Congress
established the Wyoming Territory. Congress provided
that the establishment of this new Territory would not
“impair the rights of person or property now pertaining to
the Indians in said Territory, so long as such rights shall
remain unextinguished by treaty.” An Act to Provide a
Temporary Government for the Territory of Wyoming
(Wyoming Territory Act), July 25, 1868, ch. 235, 15 Stat.
178. Around two decades later, the people of the new
Territory adopted a constitution and requested admission
to the United States. In 1890, Congress formally admitted
Wyoming “into the Union on an equal footing with the
original States in all respects,” in an Act that did not
mention Indian treaty rights. An Act to Provide for the
Admission of the State of Wyoming into the Union (Wyo-
ming Statehood Act), July 10, 1890, ch. 664, 26 Stat. 222.
Finally, in 1897, President Grover Cleveland set apart an
area in Wyoming as a public land reservation and declared
the land “reserved from entry or settlement.” Presidential
Proclamation No. 30, 29 Stat. 909. This area, made up of
lands ceded by the Crow Tribe in 1868, became known as
the Bighorn National Forest. See App. 234; Crow Tribe of
Indians v. Repsis, 73 F. 3d 982, 985 (CA10 1995).
B
Petitioner Clayvin Herrera is a member of the Crow
Tribe who resides on the Crow Reservation in Montana.
In 2014, Herrera and other Tribe members pursued a
group of elk past the boundary of the reservation and into
the neighboring Bighorn National Forest in Wyoming.
They shot several bull elk and returned to Montana with
the meat. The State of Wyoming charged Herrera for
taking elk off-season or without a state hunting license
Cite as: 587 U. S. ____ (2019) 5
Opinion of the Court
and with being an accessory to the same.
In state trial court, Herrera asserted that he had a
protected right to hunt where and when he did pursuant
to the 1868 Treaty. The court disagreed and denied Her-
rera’s pretrial motion to dismiss. See Nos. CT–2015–2687,
CT–2015–2688 (4th Jud. Dist. C. C., Sheridan Cty., Wyo.,
Oct. 16, 2015), App. to Pet. for Cert. 37, 41. Herrera un-
successfully sought a stay of the trial court’s order from
the Wyoming Supreme Court and this Court. He then
went to trial, where he was not permitted to advance a
treaty-based defense, and a jury convicted him on both
counts. The trial court imposed a suspended jail sentence,
as well as a fine and a 3-year suspension of Herrera’s
hunting privileges.
Herrera appealed. The central question facing the state
appellate court was whether the Crow Tribe’s off-
reservation hunting right was still valid. The U. S. Court
of Appeals for the Tenth Circuit, reviewing the same
treaty right in 1995 in Crow Tribe of Indians v. Repsis,
had ruled that the right had expired when Wyoming be-
came a State. 73 F. 3d, at 992–993. The Tenth Circuit’s
decision in Repsis relied heavily on a 19th-century deci-
sion of this Court, Ward v. Race Horse, 163 U. S. 504, 516
(1896). Herrera argued in the state court that this Court’s
subsequent decision in Minnesota v. Mille Lacs Band of
Chippewa Indians, 526 U. S. 172 (1999), repudiated Race
Horse, and he urged the Wyoming court to follow Mille
Lacs instead of the Repsis and Race Horse decisions that
preceded it.
The state appellate court saw things differently. Rea-
soning that Mille Lacs had not overruled Race Horse, the
court held that the Crow Tribe’s 1868 Treaty right expired
upon Wyoming’s statehood. No. 2016–242 (4th Jud. Dist.,
Sheridan Cty., Wyo., Apr. 25, 2017), App. to Pet. for Cert.
31–34. Alternatively, the court concluded that the Repsis
Court’s judgment merited issue-preclusive effect against
6 HERRERA v. WYOMING
Opinion of the Court
Herrera because he is a member of the Crow Tribe, and
the Tribe had litigated the Repsis suit on behalf of itself
and its members. App. to Pet. for Cert. 15–17, 31; App.
258. Herrera, in other words, was not allowed to relitigate
the validity of the treaty right in his own case.
The court also held that, even if the 1868 Treaty right
survived Wyoming’s entry into the Union, it did not permit
Herrera to hunt in Bighorn National Forest. Again follow-
ing Repsis, the court concluded that the treaty right ap-
plies only on “unoccupied” lands and that the national
forest became categorically “occupied” when it was created.
See App. to Pet. for Cert. 33–34; Repsis, 73 F. 3d, at 994.
The state appellate court affirmed the trial court’s judg-
ment and sentence.
The Wyoming Supreme Court denied a petition for
review, and this Court granted certiorari. 585 U. S. ___
(2018). For the reasons that follow, we now vacate and
remand.
II
We first consider whether the Crow Tribe’s hunting
rights under the 1868 Treaty remain valid. Relying on
this Court’s decision in Mille Lacs, Herrera and the United
States contend that those rights did not expire when
Wyoming became a State in 1890. We agree.
A
Wyoming argues that this Court’s decision in Race
Horse establishes that the Crow Tribe’s 1868 Treaty right
expired at statehood. But this case is controlled by Mille
Lacs, not Race Horse.
Race Horse concerned a hunting right guaranteed in a
treaty with the Shoshone and Bannock Tribes. The
Shoshone-Bannock Treaty and the 1868 Treaty with the
Crow Tribe were signed in the same year and contain
identical language reserving an off-reservation hunting
Cite as: 587 U. S. ____ (2019) 7
Opinion of the Court
right. See Treaty Between the United States of America
and the Eastern Band of Shoshonees [sic] and the
Bannack [sic] Tribe of Indians (Shoshone-Bannock Treaty),
July 3, 1868, 15 Stat. 674–675 (“[T]hey shall have the
right to hunt on the unoccupied lands of the United States
so long as game may be found thereon, and so long as
peace subsists among the whites and Indians on the bor-
ders of the hunting districts”). The Race Horse Court
concluded that Wyoming’s admission to the United States
extinguished the Shoshone-Bannock Treaty right. 163
U. S., at 505, 514–515.
Race Horse relied on two lines of reasoning. The first
turned on the doctrine that new States are admitted to the
Union on an “equal footing” with existing States. Id., at
511–514 (citing, e.g., Lessee of Pollard v. Hagan, 3 How.
212 (1845)). This doctrine led the Court to conclude that
the Wyoming Statehood Act repealed the Shoshone and
Bannock Tribes’ hunting rights, because affording the
Tribes a protected hunting right lasting after statehood
would be “irreconcilably in conflict” with the power—
“vested in all other States of the Union” and newly shared
by Wyoming—“to regulate the killing of game within their
borders.” 163 U. S., at 509, 514.
Second, the Court found no evidence in the Shoshone-
Bannock Treaty itself that Congress intended the treaty
right to continue in “perpetuity.” Id., at 514–515. To the
contrary, the Court emphasized that Congress “clearly
contemplated the disappearance of the conditions” speci-
fied in the treaty. Id., at 509. The Court decided that the
rights at issue in the Shoshone-Bannock Treaty were
“essentially perishable” and afforded the Tribes only a
“temporary and precarious” privilege. Id., at 515.
More than a century after Race Horse and four years
after Repsis relied on that decision, however, Mille Lacs
undercut both pillars of Race Horse’s reasoning. Mille
Lacs considered an 1837 Treaty that guaranteed to several
8 HERRERA v. WYOMING
Opinion of the Court
bands of Chippewa Indians the privilege of hunting, fish-
ing, and gathering in ceded lands “ ‘during the pleasure of
the President.’ ” 526 U. S., at 177 (quoting 1837 Treaty
With the Chippewa, 7 Stat. 537). In an opinion extensively
discussing and distinguishing Race Horse, the Court de-
cided that the treaty rights of the Chippewa bands sur-
vived after Minnesota was admitted to the Union. 526
U. S., at 202–208.
Mille Lacs approached the question before it in two
stages. The Court first asked whether the Act admitting
Minnesota to the Union abrogated the treaty right of the
Chippewa bands. Next, the Court examined the Chippewa
Treaty itself for evidence that the parties intended the
treaty right to expire at statehood. These inquires roughly
track the two lines of analysis in Race Horse. Despite
these parallel analyses, however, the Mille Lacs Court
refused Minnesota’s invitation to rely on Race Horse,
explaining that the case had “been qualified by later deci-
sions.” 526 U. S., at 203. Although Mille Lacs stopped
short of explicitly overruling Race Horse, it methodically
repudiated that decision’s logic.
To begin with, in addressing the effect of the Minnesota
Statehood Act on the Chippewa Treaty right, the Mille
Lacs Court entirely rejected the “equal footing” reasoning
applied in Race Horse. The earlier case concluded that the
Act admitting Wyoming to the Union on an equal footing
“repeal[ed]” the Shoshone-Bannock Treaty right because
the treaty right was “irreconcilable” with state sovereignty
over natural resources. Race Horse, 163 U. S., at 514. But
Mille Lacs explained that this conclusion “rested on a false
premise.” 526 U. S., at 204. Later decisions showed that
States can impose reasonable and nondiscriminatory
regulations on an Indian tribe’s treaty-based hunting,
fishing, and gathering rights on state land when necessary
for conservation. Id., at 204–205 (citing Washington v.
Washington State Commercial Passenger Fishing Vessel
Cite as: 587 U. S. ____ (2019) 9
Opinion of the Court
Assn., 443 U. S. 658, 682 (1979); Antoine v. Washington,
420 U. S. 194, 207–208 (1975); Puyallup Tribe v. Depart-
ment of Game of Wash., 391 U. S. 392, 398 (1968)).
“[B]ecause treaty rights are reconcilable with state sover-
eignty over natural resources,” the Mille Lacs Court con-
cluded, there is no reason to find statehood itself sufficient
“to extinguish Indian treaty rights to hunt, fish, and gather
on land within state boundaries.” 526 U. S., at 205.
In lieu of adopting the equal-footing analysis, the Court
instead drew on numerous decisions issued since Race
Horse to explain that Congress “must clearly express” any
intent to abrogate Indian treaty rights. 526 U. S., at 202
(citing United States v. Dion, 476 U. S. 734, 738–740
(1986); Fishing Vessel Assn., 443 U. S., at 690; Menominee
Tribe v. United States, 391 U. S. 404, 413 (1968)). The
Court found no such “ ‘clear evidence’ ” in the Act admit-
ting Minnesota to the Union, which was “silent” with
regard to Indian treaty rights. 526 U. S., at 203.
The Mille Lacs Court then turned to what it referred to
as Race Horse’s “alternative holding” that the rights in the
Shoshone-Bannock Treaty “were not intended to survive
Wyoming’s statehood.” 526 U. S., at 206. The Court
observed that Race Horse could be read to suggest that
treaty rights only survive statehood if the rights are “ ‘ “of
such a nature as to imply their perpetuity,” ’ ” rather than
“ ‘temporary and precarious.’ ” 526 U. S., at 206. The
Court rejected such an approach. The Court found the
“ ‘temporary and precarious’ ” language “too broad to be
useful,” given that almost any treaty rights—which Con-
gress may unilaterally repudiate, see Dion, 476 U. S., at738—could be described in those terms. 526 U. S., at 206–
207. Instead, Mille Lacs framed Race Horse as inquiring
into whether the Senate “intended the rights secured by
the . . . Treaty to survive statehood.” 526 U. S., at 207.
Applying this test, Mille Lacs concluded that statehood did
not extinguish the Chippewa bands’ treaty rights. The
10 HERRERA v. WYOMING
Opinion of the Court
Chippewa Treaty itself defined the specific “circumstances
under which the rights would terminate,” and there was
no suggestion that statehood would satisfy those circum-
stances. Ibid.Maintaining its focus on the treaty’s language, Mille
Lacs distinguished the Chippewa Treaty before it from the
Shoshone-Bannock Treaty at issue in Race Horse. Specifi-
cally, the Court noted that the Shoshone-Bannock Treaty,
unlike the Chippewa Treaty, “tie[d] the duration of the
rights to the occurrence of some clearly contemplated
event[s]”—i.e., to whenever the hunting grounds would
cease to “remai[n] unoccupied and owned by the United
States.” 526 U. S., at 207. In drawing that distinction,
however, the Court took care to emphasize that the treaty
termination analysis turns on the events enumerated in
the “Treaty itself.” Ibid. Insofar as the Race Horse Court
determined that the Shoshone-Bannock Treaty was “im-
pliedly repealed,” Mille Lacs disavowed that earlier hold-
ing. 526 U. S., at 207. “Treaty rights,” the Court clarified,
“are not impliedly terminated upon statehood.” Ibid. The
Court further explained that “[t]he Race Horse Court’s
decision to the contrary”—that Wyoming’s statehood did
imply repeal of Indian treaty rights—“was informed by”
that Court’s erroneous conclusion “that the Indian treaty
rights were inconsistent with state sovereignty over natu-
ral resources.” Id., at 207–208.
In sum, Mille Lacs upended both lines of reasoning in
Race Horse. The case established that the crucial inquiry
for treaty termination analysis is whether Congress has
expressly abrogated an Indian treaty right or whether a
termination point identified in the treaty itself has been
satisfied. Statehood is irrelevant to this analysis unless a
statehood Act otherwise demonstrates Congress’ clear
intent to abrogate a treaty, or statehood appears as a
termination point in the treaty. See 526 U. S., at 207.
“[T]here is nothing inherent in the nature of reserved
Cite as: 587 U. S. ____ (2019) 11
Opinion of the Court
treaty rights to suggest that they can be extinguished by
implication at statehood.” Ibid.Even Wyoming concedes that the Court has rejected the
equal-footing reasoning in Race Horse, Brief for Respond-
ent 26, but the State contends that Mille Lacs reaffirmed
the alternative holding in Race Horse that the Shoshone-
Bannock Treaty right (and thus the identically phrased
right in the 1868 Treaty with the Crow Tribe) was in-
tended to end at statehood. We are unpersuaded. As ex-
plained above, although the decision in Mille Lacs did not
explicitly say that it was overruling the alternative ground
in Race Horse, it is impossible to harmonize Mille Lacs’
analysis with the Court’s prior reasoning in Race Horse.1
We thus formalize what is evident in Mille Lacs itself.
While Race Horse “was not expressly overruled” in Mille
Lacs, “it must be regarded as retaining no vitality” after
that decision. Limbach v. Hooven & Allison Co., 466 U. S.
353, 361 (1984). To avoid any future confusion, we make
clear today that Race Horse is repudiated to the extent it
held that treaty rights can be impliedly extinguished at
statehood.
B
Because this Court’s intervening decision in Mille Lacs
repudiated the reasoning on which the Tenth Circuit
relied in Repsis, Repsis does not preclude Herrera from
arguing that the 1868 Treaty right survived Wyoming’s
statehood.
Under the doctrine of issue preclusion, “a prior judg-
ment . . . foreclos[es] successive litigation of an issue of
——————
1 Notably, the four Justices who dissented in Mille Lacs protested
that the Court “effectively overrule[d] Race Horse sub silentio.” 526
U. S., at 219 (Rehnquist, C. J., dissenting). Others have agreed with
this assessment. See, e.g., State v. Buchanan, 138 Wash. 2d 186, 211–
212, 978 P. 2d 1070, 1083 (1999) (“[T]he United States Supreme Court
effectively overruled Race Horse in Minnesota v. Mille Lacs”).
12 HERRERA v. WYOMING
Opinion of the Court
fact or law actually litigated and resolved in a valid court
determination essential to the prior judgment.” New
Hampshire v. Maine, 532 U. S. 742, 748–749 (2001). Even
when the elements of issue preclusion are met, however,
an exception may be warranted if there has been an inter-
vening “ ‘change in [the] applicable legal context.’ ” Bobby
v. Bies, 556 U. S. 825, 834 (2009) (quoting Restatement
(Second) of Judgments §28, Comment c (1980)); see
Limbach, 466 U. S., at 363 (refusing to find a party bound
by “an early decision based upon a now repudiated legal
doctrine”); see also Montana v. United States, 440 U. S.
147, 155 (1979) (asking “whether controlling facts or legal
principles ha[d] changed significantly” since a judgment
before giving it preclusive effect); id., at 157–158 (explain-
ing that a prior judgment was conclusive “[a]bsent signifi-
cant changes in controlling facts or legal principles” since
the judgment); Commissioner v. Sunnen, 333 U. S. 591,
599 (1948) (issue preclusion “is designed to prevent repeti-
tious lawsuits over matters which have once been decided
and which have remained substantially static, factually
and legally”). The change-in-law exception recognizes that
applying issue preclusion in changed circumstances may
not “advance the equitable administration of the law.”
Bobby, 556 U. S., at 836–837.2
——————
2 The dissent does not disagree outright with this conclusion, noting
only that “there is a respectable argument on the other side,” post, at
12. The dissent argues that the cases cited above are distinguishable,
but we do not read them as narrowly as does the dissent. We note, too,
that the lower federal courts have long applied the change-in-law
exception in a variety of contexts. See, e.g., Dow Chemical Co. v. Nova
Chemicals Corp. (Canada), 803 F. 3d 620, 627–630 (CA Fed. 2015), cert.
denied, 578 U. S. ___ (2016); Coors Brewing Co. v. Mendez-Torres, 562
F. 3d 3, 11 (CA1 2009), abrogated on other grounds by Levin v. Com-
merce Energy, Inc., 560 U. S. 413 (2010); Ginters v. Frazier, 614 F. 3d
822, 826–827 (CA8 2010); Faulkner v. National Geographic Enterprises
Inc., 409 F. 3d 26, 37–38 (CA2 2005); Chippewa & Flambeau Improve-
ment Co. v. FERC, 325 F. 3d 353, 356–357 (CADC 2003); Spradling v.
Cite as: 587 U. S. ____ (2019) 13
Opinion of the Court
We conclude that a change in law justifies an exception
to preclusion in this case. There is no question that the
Tenth Circuit in Repsis relied on this Court’s binding
decision in Race Horse to conclude that the 1868 Treaty
right terminated upon Wyoming’s statehood. See 73 F. 3d,
at 994. When the Tenth Circuit reached its decision in
Repsis, it had no authority to disregard this Court’s hold-
ing in Race Horse and no ability to predict the analysis
this Court would adopt in Mille Lacs. Mille Lacs repudi-
ated Race Horse’s reasoning. Although we recognize that
it may be difficult at the margins to discern whether a
particular legal shift warrants an exception to issue pre-
clusion, this is not a marginal case. At a minimum, a
repudiated decision does not retain preclusive force. See
Limbach, 466 U. S., at 363.3
C
We now consider whether, applying Mille Lacs, Wyo-
ming’s admission to the Union abrogated the Crow Tribe’s
off-reservation treaty hunting right. It did not.
First, the Wyoming Statehood Act does not show that
Congress intended to end the 1868 Treaty hunting right.
If Congress seeks to abrogate treaty rights, “it must clearly
——————
Tulsa, 198 F. 3d 1219, 1222–1223 (CA10 2000); Mendelovitz v. Adolph
Coors Co., 693 F. 2d 570, 579 (CA5 1982).
3 We do not address whether a different outcome would be justified if
the State had identified “compelling concerns of repose or reliance.”
See 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Proce-
dure §4425, p. 726 (3d ed. 2016). Wyoming here has not done so. The
State suggests that public support for its conservation efforts may be
jeopardized if it no longer has “unquestioned” authority over wildlife
management in the Bighorn Mountains. Brief for Respondent 54.
Wyoming does not explain why its authority to regulate Indians exer-
cising their treaty rights when necessary for conservation is not suffi-
cient to preserve that public support, see infra, at 22. The State’s
passing reference to upsetting the settled expectations of private
property owners is unconvincing because the 1868 Treaty right applies
only to “unoccupied lands of the United States.”
14 HERRERA v. WYOMING
Opinion of the Court
express its intent to do so.” Mille Lacs, 526 U. S., at 202.
“There must be ‘clear evidence that Congress actually
considered the conflict between its intended action on the
one hand and Indian treaty rights on the other, and chose
to resolve that conflict by abrogating the treaty.’ ” Id., at
202–203 (quoting Dion, 476 U. S., at 740); see Menominee
Tribe, 391 U. S., at 412. Like the Act discussed in Mille
Lacs, the Wyoming Statehood Act “makes no mention of
Indian treaty rights” and “provides no clue that Congress
considered the reserved rights of the [Crow Tribe] and
decided to abrogate those rights when it passed the Act.”
Cf. Mille Lacs, 526 U. S., at 203; see Wyoming Statehood
Act, 26 Stat. 222. There simply is no evidence that Con-
gress intended to abrogate the 1868 Treaty right through
the Wyoming Statehood Act, much less the “ ‘clear evi-
dence’ ” this Court’s precedent requires. Mille Lacs, 526
U. S., at 203.4
Nor is there any evidence in the treaty itself that Con-
gress intended the hunting right to expire at statehood, or
that the Crow Tribe would have understood it to do so. A
treaty is “essentially a contract between two sovereign
nations.” Fishing Vessel Assn., 443 U. S., at 675. Indian
treaties “must be interpreted in light of the parties’ inten-
tions, with any ambiguities resolved in favor of the Indi-
ans,” Mille Lacs, 526 U. S., at 206, and the words of a
treaty must be construed “ ‘in the sense in which they
would naturally be understood by the Indians,’ ” Fishing
Vessel Assn., 443 U. S., at 676. If a treaty “itself defines
the circumstances under which the rights would termi-
nate,” it is to those circumstances that the Court must
look to determine if the right ends at statehood. Mille
——————
4 Recall also that the Act establishing the Wyoming Territory de-
clared that the creation of the Territory would not “impair the rights of
person or property now pertaining to the Indians in said Territory”
unless a treaty extinguished those rights. Wyoming Territory Act, 15
Stat. 178.
Cite as: 587 U. S. ____ (2019) 15
Opinion of the Court
Lacs, 526 U. S., at 207.
Just as in Mille Lacs, there is no suggestion in the text
of the 1868 Treaty with the Crow Tribe that the parties
intended the hunting right to expire at statehood. The
treaty identifies four situations that would terminate the
right: (1) the lands are no longer “unoccupied”; (2) the
lands no longer belong to the United States; (3) game can
no longer “be found thereon”; and (4) the Tribe and non-
Indians are no longer at “peace . . . on the borders of the
hunting districts.” Art. IV, 15 Stat. 650. Wyoming’s
statehood does not appear in this list. Nor is there any
hint in the treaty that any of these conditions would nec-
essarily be satisfied at statehood. See Mille Lacs, 526
U. S., at 207.
The historical record likewise does not support the
State’s position. See Choctaw Nation v. United States, 318
U. S. 423, 431–432 (1943) (explaining that courts “may
look beyond the written words to the history of the treaty,
the negotiations, and the practical construction adopted by
the parties” to determine a treaty’s meaning). Crow Tribe
leaders emphasized the importance of the hunting right in
the 1867 negotiations, see, e.g., Proceedings 88, and Com-
missioner Taylor assured them that the Tribe would have
“the right to hunt upon [the ceded land] as long as the
game lasts,” id., at 86. Yet despite the apparent im-
portance of the hunting right to the negotiations, Wyo-
ming points to no evidence that federal negotiators ever
proposed that the right would end at statehood. This
silence is especially telling because five States encompass-
ing lands west of the Mississippi River—Nebraska, Nevada,
Kansas, Oregon, and Minnesota—had been admitted to the
Union in just the preceding decade. See ch. 36, 14 Stat.
391 (Nebraska, Feb. 9, 1867); Presidential Proclamation
No. 22, 13 Stat. 749 (Nevada, Oct. 31, 1864); ch. 20, 12
Stat. 126 (Kansas, Jan. 29, 1861); ch. 33, 11 Stat. 383(Oregon, Feb. 14, 1859); ch. 31, 11 Stat. 285 (Minnesota,
16 HERRERA v. WYOMING
Opinion of the Court
May 11, 1858). Federal negotiators had every reason to
bring up statehood if they intended it to extinguish the
Tribe’s hunting rights.
In the face of this evidence, Wyoming nevertheless
contends that the 1868 Treaty expired at statehood pursu-
ant to the Mille Lacs analysis. Wyoming does not argue
that the legal act of Wyoming’s statehood abrogated the
treaty right, and it cannot contend that statehood is ex-
plicitly identified as a treaty expiration point. Instead,
Wyoming draws on historical sources to assert that state-
hood, as a practical matter, marked the arrival of “civiliza-
tion” in the Wyoming Territory and thus rendered all the
lands in the State occupied. Brief for Respondent 48. This
claim cannot be squared with Mille Lacs.
Wyoming’s arguments boil down to an attempt to read
the treaty impliedly to terminate at statehood, precisely as
Mille Lacs forbids. The State sets out a potpourri of evi-
dence that it claims shows statehood in 1890 effectively
coincided with the disappearance of the wild frontier: for
instance, that the buffalo were extinct by the mid-1870s;
that by 1880, Indian Department regulations instructed
Indian agents to confine tribal members “ ‘wholly within
the limits of their respective reservations’ ”; and that the
Crow Tribe stopped hunting off-reservation altogether in
1886. Brief for Respondent 47 (quoting §237 Instructions
to Indian Agents (1880), as published in Regulations of the
Indian Dept. §492 (1884)).
Herrera contradicts this account, see Reply Brief for
Petitioner 5, n. 3, and the historical record is by no means
clear. For instance, game appears to have persisted for
longer than Wyoming suggests. See Dept. of Interior,
Ann. Rep. of the Comm’r of Indian Affairs 495 (1873)
(Black Foot: “On the other side of the river below, there
are plenty of buffalo; on the mountains are plenty of elk
and black-tail deer; and white-tail deer are plenty at the
foot of the mountain”). As for the Indian Department
Cite as: 587 U. S. ____ (2019) 17
Opinion of the Court
Regulations, there are reports that a group of Crow Tribe
members “regularly hunted along the Little Bighorn River”
even after the regulation the State cites was in effect.
Hoxie, Parading Through History, at 26. In 1889, the Office
of Indian Affairs wrote to U. S. Indian Agents in the
Northwest that “[f]requent complaints have been made to
this Department that Indians are in the habit of leaving
their reservations for the purpose of hunting.” 28 Cong.
Rec. 6231 (1896).
Even assuming that Wyoming presents an accurate
historical picture, the State’s mode of analysis is severely
flawed. By using statehood as a proxy for occupation,
Wyoming subverts this Court’s clear instruction that
treaty-protected rights “are not impliedly terminated upon
statehood.” Mille Lacs, 526 U. S., at 207.
Finally, to the extent that Wyoming seeks to rely on this
same evidence to establish that all land in Wyoming was
functionally “occupied” by 1890, its arguments fall outside
the question presented and are unpersuasive in any event.
As explained below, the Crow Tribe would have under-
stood occupation to denote some form of residence or set-
tlement. See infra, at 19–20. Furthermore, Wyoming
cannot rely on Race Horse to equate occupation with
statehood, because that case’s reasoning rested on the
flawed belief that statehood could not coexist with a con-
tinuing treaty right. See Race Horse, 163 U. S., at 514;
Mille Lacs, 526 U. S., at 207–208.
Applying Mille Lacs, this is not a hard case. The Wyo-
ming Statehood Act did not abrogate the Crow Tribe’s
hunting right, nor did the 1868 Treaty expire of its own
accord at that time. The treaty itself defines the circum-
stances in which the right will expire. Statehood is not
one of them.
III
We turn next to the question whether the 1868 Treaty
18 HERRERA v. WYOMING
Opinion of the Court
right, even if still valid after Wyoming’s statehood, does
not protect hunting in Bighorn National Forest because
the forest lands are “occupied.” We agree with Herrera
and the United States that Bighorn National Forest did
not become categorically “occupied” within the meaning of
the 1868 Treaty when the national forest was created.5
——————
5 Wyoming argues that the judgment below should be affirmed be-
cause the Tenth Circuit held in Repsis that the creation of the forest
rendered the land “occupied,” see 73 F. 3d, at 994, and thus Herrera is
precluded from raising this issue. We did not grant certiorari on the
question of how preclusion principles would apply to the alternative
judgment in Repsis, and—although our dissenting colleagues disagree,
see post, at 13, and n. 6—the decision below did not address that issue.
The Wyoming appellate court agreed with the State that “the pri-
mary issue in [Herrera’s] case is identical to the primary issue in the
Repsis case.” No. 2016–242 (4th Jud. Dist., Sheridan Cty., Wyo., Apr.
25, 2017), App. to Pet. for Cert. 13 (emphasis added). That “primary
issue” was the Race Horse ground of decision, not the “occupation”
ground, which Repsis referred to as “an alternative basis for affir-
mance,” Repsis, 73 F. 3d, at 993, and which the Wyoming court itself
described as an “alternativ[e]” holding, No. 2016–242, App. to Pet. for
Cert. 33. Reading the state court’s decision to give preclusive effect to
the occupation ground as well would not fit with the Wyoming court’s
preclusion analysis, which, among other things, relied on a decision of
the Federal District Court in Repsis that did not address the occupation
issue. See No. 2016–242, App. to Pet. for Cert. 14, 18; see also Repsis,
73 F. 3d, at 993 (explaining that “the district court did not reach [the
occupation] issue”). Context thus makes clear that the state court gave
issue-preclusive effect only to Repsis’ holding that the 1868 Treaty was
no longer valid, not to Repsis’ independent, narrower holding that
Bighorn National Forest in particular was “occupied” land. The court
may not have addressed the issue-preclusive effect of the latter holding
because of ambiguity in the State’s briefing. See Appellee’s Supple-
mental Brief in No. 2016–242, pp. 4, 11–12.
While the dissent questions whether forfeiture could have played a
part in the state court’s analysis given that the court invited the parties
to submit supplemental briefs on preclusion, post, at 13, n. 6, the
parties suggest that Wyoming failed adequately to raise the claim even
in its supplemental brief. See Brief for Petitioner 49 (“the state made
no such argument before” the state court); Brief for United States as
Amicus Curiae 31 (noting ambiguity in the State’s supplemental brief).
Cite as: 587 U. S. ____ (2019) 19
Opinion of the Court
Treaty analysis begins with the text, and treaty terms
are construed as “ ‘they would naturally be understood by
the Indians.’ ” Fishing Vessel Assn., 443 U. S., at 676.
Here it is clear that the Crow Tribe would have under-
stood the word “unoccupied” to denote an area free of
residence or settlement by non-Indians.
That interpretation follows first and foremost from
several cues in the treaty’s text. For example, Article IV
of the 1868 Treaty made the hunting right contingent on
peace “among the whites and Indians on the borders of the
hunting districts,” thus contrasting the unoccupied hunt-
ing districts with areas of white settlement. 15 Stat. 650.
The treaty elsewhere used the word “occupation” to refer
to the Tribe’s residence inside the reservation boundaries,
and referred to the Tribe members as “settlers” on the new
reservation. Arts. II, VI, id., at 650–651. The treaty also
juxtaposed occupation and settlement by stating that the
Tribe was to make “no permanent settlement” other than
on the new reservation, but could hunt on the “unoccupied
lands” of the United States. Art. IV, id., at 650. Contem-
poraneous definitions further support a link between
occupation and settlement. See W. Anderson, A Diction-
——————
It can be “appropriate in special circumstances” for a court to address
a preclusion argument sua sponte. Arizona v. California, 530 U. S. 392,
412 (2000). But because the Wyoming District Court “did not address”
this contention, “we decline to address it here.” County of Los Angeles
v. Mendez, 581 U. S. ___, ___, n. (2017) (slip op., at 8, n.); see Cutter v.
Wilkinson, 544 U. S. 709, 718, n. 7 (2005); Archer v. Warner, 538 U. S.
314, 322–323 (2003). Resolution of this question would require fact-
intensive analyses of whether this issue was fully and fairly litigated in
Repsis or was forfeited in this litigation, among other matters. These
gateway issues should be decided before this Court addresses them,
especially given that even the dissent acknowledges that one of the
preclusion issues raised by the parties is important and undecided,
post, at 14, and some of the parties’ other arguments are equally
weighty. Unlike the dissent, we do not address these issues in the first
instance.
20 HERRERA v. WYOMING
Opinion of the Court
ary of Law 725 (1889) (defining “occupy” as “[t]o hold in
possession; to hold or keep for use” and noting that the
word “[i]mplies actual use, possession or cultivation by a
particular person”); id., at 944 (defining “settle” as “[t]o
establish one’s self upon; to occupy, reside upon”).
Historical evidence confirms this reading of the word
“unoccupied.” At the treaty negotiations, Commissioner
Taylor commented that “settlements ha[d] been made
upon [Crow Tribe] lands” and that “white people [were]
rapidly increasing and . . . occupying all the valuable
lands.” Proceedings 86. It was against this backdrop of
white settlement that the United States proposed to buy
“the right to use and settle” the ceded lands, retaining for
the Tribe the right to hunt. Ibid. A few years after the
1868 Treaty signing, a leader of the Board of Indian
Commissioners confirmed the connection between occupa-
tion and settlement, explaining that the 1868 Treaty
permitted the Crow Tribe to hunt in an area “as long as
there are any buffalo, and as long as the white men are
not [in that area] with farms.” Dept. of Interior, Ann. Rep.
of the Comm’r of Indian Affairs 500.
Given the tie between the term “unoccupied” and a lack
of non-Indian settlement, it is clear that President Cleve-
land’s proclamation creating Bighorn National Forest did
not “occupy” that area within the treaty’s meaning. To the
contrary, the President “reserved” the lands “from entry or
settlement.” Presidential Proclamation No. 30, 29 Stat.
909. The proclamation gave “[w]arning . . . to all persons
not to enter or make settlement upon the tract of land
reserved by th[e] proclamation.” Id., at 910. If anything,
this reservation made Bighorn National Forest more
hospitable, not less, to the Crow Tribe’s exercise of the
1868 Treaty right.
Wyoming’s counterarguments are unavailing. The State
first asserts that the forest became occupied through the
Federal Government’s “exercise of dominion and control”
Cite as: 587 U. S. ____ (2019) 21
Opinion of the Court
over the forest territory, including federal regulation of
those lands. Brief for Respondent 56–60. But as ex-
plained, the treaty’s text and the historical record suggest
that the phrase “unoccupied lands” had a specific meaning
to the Crow Tribe: lack of settlement. The proclamation of
a forest reserve withdrawing land from settlement would
not categorically transform the territory into an area
resided on or settled by non-Indians; quite the opposite.
Nor would the restrictions on hunting in national forests
that Wyoming cites. See Appropriations Act of 1899, ch.
424, 30 Stat. 1095; 36 CFR §§241.2, 241.3 (Supp. 1941);
§261.10(d)(1) (2018).
Wyoming also claims that exploitative mining and
logging of the forest lands prior to 1897 would have caused
the Crow Tribe to view the Bighorn Mountains as occu-
pied. But the presence of mining and logging operations
did not amount to settlement of the sort that the Tribe
would have understood as rendering the forest occupied. In
fact, the historical source on which Wyoming primarily
relies indicates that there was “very little” settlement of
Bighorn National Forest around the time the forest was
created. Dept. of Interior, Nineteenth Ann. Rep. of the
U. S. Geological Survey 167 (1898).
Considering the terms of the 1868 Treaty as they would
have been understood by the Crow Tribe, we conclude that
the creation of Bighorn National Forest did not remove the
forest lands, in their entirety, from the scope of the treaty.
IV
Finally, we note two ways in which our decision is lim-
ited. First, we hold that Bighorn National Forest is not
categorically occupied, not that all areas within the forest
are unoccupied. On remand, the State may argue that the
specific site where Herrera hunted elk was used in such a
way that it was “occupied” within the meaning of the 1868
Treaty. See State v. Cutler, 109 Idaho 448, 451, 708 P. 2d
22 HERRERA v. WYOMING
Opinion of the Court
853, 856 (1985) (stating that the Federal Government may
not be foreclosed from using land in such a way that the
Indians would have considered it occupied).
Second, the state trial court decided that Wyoming could
regulate the exercise of the 1868 Treaty right “in
the interest of conservation.” Nos. CT–2015–2687,
CT–2015–2688, App. to Pet. for Cert. 39–41; see Antoine,
420 U. S., at 207. The appellate court did not reach this
issue. No. 2016–242, App. to Pet. for Cert. 14, n. 3. On
remand, the State may press its arguments as to why the
application of state conservation regulations to Crow Tribe
members exercising the 1868 Treaty right is necessary for
conservation. We do not pass on the viability of those
arguments today.
* * *
The judgment of the Wyoming District Court of the
Fourth Judicial District, Sheridan County, is vacated, and
the case is remanded for further proceedings not incon-
sistent with this opinion.
It is so ordered.
Cite as: 587 U. S. ____ (2019) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–532
_________________
CLAYVIN HERRERA, PETITIONER v. WYOMING
ON WRIT OF CERTIORARI TO THE DISTRICT COURT OF
WYOMING, SHERIDAN COUNTY
[May 20, 2019]
JUSTICE ALITO, with whom THE CHIEF JUSTICE, JUSTICE
THOMAS, and JUSTICE KAVANAUGH join, dissenting.
The Court’s opinion in this case takes a puzzling course.
The Court holds that members of the Crow Tribe retain a
virtually unqualified right under the Treaty Between the
United States of America and the Crow Tribe of Indians
(1868 Treaty) to hunt on land that is now part of the
Bighorn National Forest. This interpretation of the treaty
is debatable and is plainly contrary to the decision in
Ward v. Race Horse, 163 U. S. 504 (1896), which construed
identical language in a closely related treaty. But even if
the Court’s interpretation of the treaty is correct, its deci-
sion will have no effect if the members of the Crow Tribe
are bound under the doctrine of issue preclusion by the
judgment in Crow Tribe of Indians v. Repsis, 73 F. 3d 982,
992–993 (CA10 1995) (holding that the hunting right
conferred by that treaty is no longer in force).
That judgment was based on two independent grounds,
and the Court deals with only one of them. The Court
holds that the first ground no longer provides an adequate
reason to give the judgment preclusive effect due to an
intervening change in the legal context. But the Court
sidesteps the second ground and thus leaves it up to the
state courts to decide whether the Repsis judgment con-
tinues to have binding effect. If it is still binding—and I
think it is—then no member of the Tribe will be able
2 HERRERA v. WYOMING
ALITO, J., dissenting
to assert the hunting right that the Court addresses.
Thus, the Court’s decision to plow ahead on the treaty-
interpretation issue is hard to understand, and its dis-
course on that issue is likely, in the end, to be so much
wasted ink.
I
A
As the Court notes, the Crow Indians eventually settled
in what is now Montana, where they subsequently came
into contact with early white explorers and trappers. F.
Hoxie, The Crow 26–28, 33 (1989). In an effort to promote
peace between Indians and white settlers and to mitigate
conflicts between different tribes, the United States nego-
tiated treaties that marked out a territory for each tribe to
use as a hunting district. See 2 C. Kappler, Indian Affairs:
Laws and Treaties 594 (2d ed. 1904) (Kappler). The Treaty
of Fort Laramie of 1851 (1851 Treaty), 11 Stat. 749,
created such a hunting district for the Crow.
As white settlement increased, the United States en-
tered into a series of treaties establishing reservations for
the Crow and neighboring tribes, and the 1868 Treaty was
one such treaty. 15 Stat. 649; Kappler 1008. It set out an
8-million-acre reservation for the Crow Tribe but required
the Tribe to cede ownership of all land outside this reser-
vation, including 30 million acres that lay within the
hunting district defined by the 1851 Treaty. Under this
treaty, however, the Crow kept certain enumerated rights
with respect to the use of those lands, and among these
was “the right to hunt on the unoccupied lands of the
United States so long as game may be found thereon, and
as long as peace subsists among the whites and Indians on
the borders of the hunting districts.” 1868 Treaty, Art. IV,
15 Stat. 650.
Shortly after the signing of the 1868 Treaty, Congress
created the Wyoming Territory, which was adjacent to and
Cite as: 587 U. S. ____ (2019) 3
ALITO, J., dissenting
immediately south of the Crow Tribe’s reservation. The
Act creating the Territory provided that “nothing in this
act shall be construed to impair the rights of person or
property now pertaining to the Indians in said Territory,
so long as such rights shall remain unextinguished by
treaty between the United States and such Indians.” Act
of July 25, 1868, ch. 235, 15 Stat. 178. Twenty-two years
later, Congress admitted Wyoming as a State “on an equal
footing with the original States in all respects whatever.”
Act of July 10, 1890, ch. 664, 26 Stat. 222. The following
year, Congress passed an Act empowering the President to
“set apart and reserve” tracts of public lands owned by the
United States as forest reservations. Act of Mar. 3, 1891,
ch. 561, §24, 26 Stat. 1103. Exercising that authority,
President Cleveland designated some lands in Wyoming
that remained under federal ownership as a forest reser-
vation. Presidential Proclamation No. 30, 29 Stat. 909.
Today, those lands make up the Bighorn National Forest.
Bighorn abuts the Crow Reservation along the border
between Wyoming and Montana and includes land that
was previously part of the Crow Tribe’s hunting district.
These enactments did not end legal conflicts between
the white settlers and Indians. Almost immediately after
Wyoming’s admission to the Union, this Court had to
determine the extent of the State’s regulatory power in
light of a tribe’s reserved hunting rights. A member of the
Shoshone-Bannock Tribes named Race Horse had been
arrested by Wyoming officials for taking elk in violation of
state hunting laws. Race Horse, supra, at 506. The
Shoshone-Bannock Tribes, like the Crow, had accepted a
reservation while retaining the right to hunt in the lands
previously within their hunting district. Their treaty
reserves the same right, using the same language, as the
Crow Tribe’s treaty.1 Race Horse argued that he had the
——————
1 The Shoshone-Bannock Treaty reserved “ ‘the right to hunt on the
4 HERRERA v. WYOMING
ALITO, J., dissenting
right to hunt at the spot of his alleged offense, as the
nearest settlement lay more than 60-miles distant, mak-
ing the land where he was hunting “unoccupied lands of
the United States.” In re Race Horse, 70 F. 598, 599–600
(Wyo. 1895).
This Court rejected Race Horse’s argument, holding that
the admission of Wyoming to the Union terminated the
hunting right. 163 U. S., at 514. Although the opinion of
the Court is not a model of clarity, this conclusion appears
to rest on two grounds.
First, the Court held that Wyoming’s admission neces-
sarily ended the Tribe’s hunting right because otherwise
the State would lack the power, possessed by every other
State, “to regulate the killing of game within [its] borders.”
Ibid. Limiting Wyoming’s power in this way, the Court
reasoned, would contravene the equal-footing doctrine,
which dictates that all States enter the Union with the full
panoply of powers enjoyed by the original 13 States at the
adoption of the Constitution. Ibid. Under this rationale,
the Act of Congress admitting Wyoming could not have
preserved the hunting right even if that had been Con-
gress’s wish.
After providing this basis for its holding, however, the
Court quickly turned to a second ground, namely, that
even if Congress could have limited Wyoming’s authority
in this way, it had not attempted to do so. Id., at 515. The
Court thought that Congress’s intention not to impose
such a restriction on the State was “conveyed by the ex-
press terms of the act of admission,” but the Court did not
identify the terms to which it was referring. Ibid. It did,
however, see support for its decision in the nature of the
——————
unoccupied lands of the United States, so long as game may be found
thereon, and so long as peace subsists among the whites and Indians on
the borders of the hunting districts.’ ” Race Horse, 163 U. S., at 507;
Kappler 1020, 1021.
Cite as: 587 U. S. ____ (2019) 5
ALITO, J., dissenting
hunting right reserved under the treaty. This right, the
Court observed, was not “of such a nature as to imply [its]
perpetuity” but was instead “temporary and precarious,”
since it depended on the continuation of several condi-
tions, including at least one condition wholly within the
control of the Government—continued federal ownership
of the land. Ibid.Race Horse did not mark a final resolution of the conflict
between Wyoming’s regulatory power and tribal hunting
rights. Nearly a century later, Thomas Ten Bear, a mem-
ber of the Crow Tribe, crossed into Wyoming to hunt elk in
the Bighorn National Forest, just as Herrera did in this
case. Wyoming game officials cited Ten Bear, and he was
ultimately convicted of hunting elk without the requisite
license.2 Ten Bear, like Race Horse before him, filed a
lawsuit in federal court disputing Wyoming’s authority to
regulate hunting by members of his Tribe. Crow Tribe of
Indians v. Repsis, 866 F. Supp. 520, 521 (Wyo. 1994).
Joined by the Crow Tribe, he argued that the 1868 Treaty—
the same treaty at issue here—gave him the right to
take elk in the national forest.
The District Court found that challenge indistinguish-
able from the one addressed in Race Horse. The District
Court noted that Race Horse had pointed to “identical
treaty language” and had “advanced the identical conten-
tion now made by” Ten Bear and the Tribe. Repsis, 866
F. Supp., at 522. Because Race Horse “remain[ed] control-
ling,” the District Court granted summary judgment to the
State. 866 F. Supp., at 524.
The Tenth Circuit affirmed that judgment on two inde-
pendent grounds. First, the Tenth Circuit agreed with the
——————
2 Wyoming officials enforce the State’s hunting laws on national for-
est lands pursuant to a memorandum of understanding between the
State and Federal Governments. Crow Tribe of Indians v. Repsis, 866
F. Supp. 520, 521, n. 1 (Wyo. 1994).
6 HERRERA v. WYOMING
ALITO, J., dissenting
District Court that, under Race Horse, “[t]he Tribe’s right
to hunt reserved in the Treaty with the Crows, 1868, was
repealed by the act admitting Wyoming into the Union.”
Crow Tribe of Indians v. Repsis, 73 F. 3d 982, 992 (1995).
Second, as an independent alternative ground for affir-
mance, the Tenth Circuit held that the Tribe’s hunting
right had expired because “the treaty reserved an off-
reservation hunting right on ‘unoccupied’ lands and the
lands of the Big Horn National Forest are ‘occupied.’ ” Id.,
at 993. The Tenth Circuit reasoned that “unoccupied”
land within the meaning of the treaty meant land that
was open for commercial or residential use, and since the
creation of the national forest precluded those activities, it
followed that the land was no longer “unoccupied” in the
relevant sense. Ibid.B
The events giving rise to the present case are essentially
the same as those in Race Horse and Repsis. During the
winter of 2013, Herrera, who was an officer in the Crow
Tribe’s fish and game department, contacted Wyoming
game officials to offer assistance investigating a number of
poaching incidents along the border between Bighorn and
the Crow Reservation.3 After a lengthy discussion in
which Herrera asked detailed questions about the State’s
investigative capabilities, the Wyoming officials became
suspicious of Herrera’s motives. The officials conducted a
web search for Herrera’s name and found photographs
posted on trophy-hunting and social media websites that
showed him posing with bull elk. The officers recognized
from the scenery in the pictures that the elk had been
——————
3 Such cooperative law enforcement is valuable because the Crow
Reservation and Bighorn National Forest face one another along the
border between Montana, where the Crow Reservation is located, and
Wyoming, where Bighorn is located. Supra, at 3. The border is deline-
ated by a high fence intermittently posted with markers.
Cite as: 587 U. S. ____ (2019) 7
ALITO, J., dissenting
killed in Bighorn and were able to locate the sites where
the pictures had been taken. At those sites, about a mile
south of the fence running along the Bighorn National
Forest boundary, state officials discovered elk carcasses.
The heads had been taken from the carcasses but much of
the meat was abandoned in the field. State officials con-
fronted Herrera, who confessed to the shootings and
turned over the heads that he and his companions had
taken as trophies. The Wyoming officials cited Herrera for
hunting out of season.
Herrera moved to dismiss the citations, arguing that he
had a treaty right to hunt in Bighorn. The trial court
rejected this argument, concluding that it was foreclosed
by the Tenth Circuit’s analysis in Repsis, and the jury
found Herrera guilty. On appeal, Herrera continued to
argue that he had a treaty right to hunt in Bighorn. The
appellate court held that the judgment in Repsis precluded
him from asserting a treaty hunting right, and it also
held, in the alternative, that Herrera’s treaty rights did
not allow him to hunt in Bighorn. This Court granted
certiorari.
II
In seeking review in this Court, Herrera framed this
case as implicating only a question of treaty interpreta-
tion. But unless the state court was wrong in holding that
Herrera is bound by the judgment in Repsis, there is no
reason to reach the treaty-interpretation question. For
this reason, I would begin with the question of issue pre-
clusion, and because I believe that Herrera is bound by the
adverse decision on that issue in Repsis, I would not reach
the treaty-interpretation issue.
A
It is “a fundamental precept of common-law adjudica-
tion” that “an issue once determined by a competent court
8 HERRERA v. WYOMING
ALITO, J., dissenting
is conclusive.” Arizona v. California, 460 U. S. 605, 619
(1983). “The idea is straightforward: Once a court has
decided an issue, it is forever settled as between the par-
ties, thereby protecting against the expense and vexation
attending multiple lawsuits, conserving judicial resources,
and fostering reliance on judicial action by minimizing the
possibility of inconsistent verdicts.” B&B Hardware, Inc.
v. Hargis Industries, Inc., 575 U. S. 138, ___ (2015) (slip
op., at 8) (internal quotation marks, citation, and altera-
tions omitted). Succinctly put, “a losing litigant deserves
no rematch after a defeat fairly suffered.” Astoria Fed.
Sav. & Loan Assn. v. Solimino, 501 U. S. 104, 107 (1991).
Under federal issue-preclusion principles,4 “once an
issue is actually and necessarily determined by a court of
competent jurisdiction, that determination is conclusive in
subsequent suits based on a different cause of action
involving a party to the prior litigation.” Montana v.
United States, 440 U. S. 147, 153 (1979). That standard
for issue preclusion is met here.
In Repsis, the central issue—and the question on which
the Crow Tribe sought a declaratory judgment—was
whether members of the Tribe “have an unrestricted right
to hunt and fish on Big Horn National Forest lands.” 866
F. Supp., at 521. The Tenth Circuit’s judgment settled
that question by holding that “the Tribe and its members
are subject to the game laws of Wyoming.” 73 F. 3d, at
994. In this case, Herrera asserts the same hunting right
that was actually litigated and decided against his Tribe
in Repsis. He does not suggest that either the Federal
District Court or the Tenth Circuit lacked jurisdiction to
——————
4 The preclusive effect of the judgment of a federal court is governed
by federal law, regardless of whether that judgment’s preclusive effect
is later asserted in a state or federal forum. Taylor v. Sturgell, 553
U. S. 880, 892 (2008). This means that the preclusive effect of Repsis,
decided by a federal court, is governed by federal law, not Wyoming
law, even though preclusion was asserted in a Wyoming court.
Cite as: 587 U. S. ____ (2019) 9
ALITO, J., dissenting
decide Repsis. And, because Herrera’s asserted right is
based on his membership in the Tribe, a judgment binding
on the Tribe is also binding on him. As a result, the Wyo-
ming appellate court held that Repsis bound Herrera and
precluded him from asserting a treaty-rights defense.
That holding was correct.
B
The majority concludes otherwise based on an exception
to issue preclusion that applies when there has been an
intervening “change in the applicable legal context.” Ante,
at 12 (internal quotation marks and alteration omitted).
Specifically, the majority reasons that the Repsis judg-
ment was based on Race Horse and that our subsequent
decision in Minnesota v. Mille Lacs Band of Chippewa
Indians, 526 U. S. 172 (1999), represents a change in the
applicable law that is sufficient to abrogate the Repsis
judgment’s preclusive effect. There is support in the
Restatement (Second) of Judgments for the general propo-
sition that a change in law may alter a judgment’s preclu-
sive effect, §28, Comment c, p. 276 (1980), and in a prior
case, Bobby v. Bies, 556 U. S. 825, 834 (2009), we invoked
that provision. But we have never actually held that a
prior judgment lacked preclusive effect on this ground.
Nor have we ever defined how much the relevant “legal
context” must change in order for the exception to apply.
If the exception is applied too aggressively, it could dan-
gerously undermine the important interests served by
issue preclusion. So caution is in order in relying on that
exception here.
The majority thinks that the exception applies because
Mille Lacs effectively overruled Race Horse, even though it
did not say that in so many words. But that is a question-
able interpretation. The fact of the matter is that the
Mille Lacs majority held back from actually overruling
Race Horse, even though the dissent claimed that it had
10 HERRERA v. WYOMING
ALITO, J., dissenting
effectively done so. See Mille Lacs, 526 U. S., at 207 (ap-
plying the “Race Horse inquiry” but factually distinguish-
ing that case from the facts present in Mille Lacs); id., at
219 (Rehnquist, C. J., dissenting) (noting the Court’s
“apparent overruling sub silentio” of Race Horse). And
while the opinion of the Court repudiated one of the two
grounds that the Race Horse Court gave for its decision
(the equal-footing doctrine), it is by no means clear that
Mille Lacs also rejected the second ground (the conclusion
that the terms of the Act admitting Wyoming to the Union
manifested a congressional intent not to burden the State
with the right created by the 1868 Treaty). With respect
to this latter ground, the Mille Lacs Court characterized
the proper inquiry as follows: “whether Congress (more
precisely, because this is a treaty, the Senate) intended
the rights secured by the 1837 Treaty to survive state-
hood.” 526 U. S., at 207. And the Court then went on to
analyze the terms of the particular treaty at issue in that
case and to contrast those terms with those of the treaty in
Race Horse. Mille Lacs, supra, at 207.
On this reading, it appears that Mille Lacs did not reject
the second ground for the decision in Race Horse but simply
found it inapplicable to the facts of the case at hand. I do
not claim that this reading of Mille Lacs is indisputable,
but it is certainly reasonable, and if it is correct, Mille
Lacs did not change the legal context as much as the
majority suggests. It knocked out some of Race Horse’s
reasoning but did not effectively overrule the decision. Is
that enough to eliminate the preclusive effect of the first
ground for the Repsis judgment?
The majority cites no authority holding that a decision
like Mille Lacs is sufficient to deprive a prior judgment of
its issue-preclusive effect. Certainly, Bies, supra, upon
which the majority relies, is not such authority. In that
case, Bies had been convicted of murder and sentenced to
death at a time when what was then termed “mental
Cite as: 587 U. S. ____ (2019) 11
ALITO, J., dissenting
retardation” did not render a defendant ineligible for a
death sentence but was treated as simply a mitigating
factor to be taken into account in weighing whether such a
sentence should be imposed. When Bies contested his
death sentence on appeal, the state appellate court ob-
served that he suffered from a mild form of intellectual
disability, but it nevertheless affirmed his sentence. Years
later, in Atkins v. Virginia, 536 U. S. 304 (2002), this
Court ruled that an intellectually disabled individual
cannot be executed, and the Sixth Circuit then held that
the state court’s prior statements about Bies’s condition
barred his execution under issue-preclusion principles.
This Court reversed, and its primary reason for doing so
has no relation to the question presented here. We found
that issue preclusion was not available to Bies because he
had not prevailed in the first action; despite the state
court’s recognition of mild intellectual disability as a
mitigating factor, it had affirmed his sentence. As we put
it, “[i]ssue preclusion . . . does not transform final judg-
ment losers . . . into partially prevailing parties.” Bies, 556
U. S., at 829; see also id., at 835.
Only after providing this dispositive reason for rejecting
the Sixth Circuit’s invocation of issue preclusion did we go
on to cite the Restatement’s discussion of the change-in-
law exception. And we then quickly noted that the issue
addressed by the state appellate courts prior to Atkins
(“[m]ental retardation as a mitigator”) was not even the
same issue as the issue later addressed after Atkins. Bies,
supra, at 836 (the two “are discrete legal issues”). So Bies
is very far afield.5
——————
5 Nor are the other cases cited by the majority more helpful to the
Court’s position. Commissioner v. Sunnen, 333 U. S. 591 (1948), and
Limbach v. Hooven & Allison Co., 466 U. S. 353 (1984)—and, indeed,
Montana v. United States, 440 U. S. 147 (1979)—are tax cases that
hold, consistent with the general policy against “discriminatory distinc-
tions in tax liability,” Sunnen, 333 U. S., at 599, that issue preclusion
12 HERRERA v. WYOMING
ALITO, J., dissenting
Although the majority in the present case believes that
Mille Lacs unquestionably constitutes a sufficient change
in the legal context, see ante, at 13, there is a respectable
argument on the other side. I would not decide that ques-
tion because Herrera and other members of the Crow
Tribe are bound by the judgment in Repsis even if the
change-in-legal-context exception applies.
C
That is so because the Repsis judgment was based on a
second, independently sufficient ground that has nothing
to do with Race Horse, namely, that the Bighorn National
Forest is not “unoccupied.” Herrera and the United
States, appearing as an amicus in his support, try to
escape the effect of this alternative ground based on other
exceptions to the general rule of issue preclusion. But
accepting any of those exceptions would work a substan-
tial change in established principles, and it is fortunate
that the majority has not taken that route.
Unfortunately, the track that the majority has chosen is
no solution because today’s decision will not prevent the
Wyoming courts on remand in this case or in future cases
presenting the same issue from holding that the Repsis
judgment binds all members of the Crow Tribe who hunt
within the Bighorn National Forest. And for the reasons I
will explain, such a holding would be correct.
1
Attempting to justify its approach, the majority claims
that the decision below gave preclusive effect to only the
——————
has limited application when the conduct in the second litigation
occurred in a different tax year than the conduct that was the subject of
the earlier judgment. We have not, prior to today, applied Sunnen’s
tax-specific policy in cases that do not involve tax liability and do not
create a possibility of “inequalities in the administration of the revenue
laws.” Ibid.Cite as: 587 U. S. ____ (2019) 13
ALITO, J., dissenting
first ground adopted by the Tenth Circuit in Repsis—that
is, the ground that relied on Race Horse. Ante, at 18, n. 5.
But nowhere in the decision below can any such limitation
be found. The Wyoming appellate court discussed the
second ground for the Repsis judgment, see App. to Pet. for
Cert. 22 (“[T]he creation of the Big Horn National Forest
resulted in the ‘occupation’ of the land, extinguishing the
off-reservation hunting right”), and it concluded that the
judgment in Repsis, not just one of the grounds for that
judgment, “preclude[s] Herrera from attempting to reliti-
gate the validity of the off-reservation hunting right that
was previously held to be invalid,” App. to Pet. for Cert.
31.6
2
Herrera takes a different approach in attempting to
circumvent the effect of the alternative Repsis ground.
When a judgment rests on two independently sufficient
——————
6 The decision below, in other words, held that the issue that was
precluded was whether members of the Crow Tribe have a treaty right
to hunt in Bighorn. The majority rejects this definition of the issue,
and instead asks only whether the first line of reasoning in Repsis
retains preclusive effect. Such hairsplitting conflicts with the funda-
mental purpose of issue preclusion—laying legal disputes at rest. If
courts allow a party to escape preclusion whenever a decision on one
legal question can be divided into multiple or alternate parts, the
doctrine of preclusion would lose its value. The majority’s “[n]arrower
definition of the issues resolved augments the risk of apparently
inconsistent results” and undermines the objectives of finality and
economy served by preclusion. 18 C. Wright, A. Miller, & E. Cooper,
Federal Practice and Procedure §4417, p. 470 (3d ed. 2016).
The Court also hints that the state court might have thought that
Wyoming forfeited reliance on issue preclusion, ante, at 18, n. 5, but
there is no basis for that suggestion. The Wyoming appellate court
invited the parties to submit supplemental briefs on issue preclusion
and specifically held that “it [was] proper for the Court to raise this
issue sua sponte when no factual development is required, and the
parties are given an opportunity to fully brief the issues.” App. to Pet.
for Cert. 10, n. 2.
14 HERRERA v. WYOMING
ALITO, J., dissenting
grounds, he contends, neither ground should be regarded
as having an issue-preclusive effect. This argument raises
an important question that this Court has never decided
and one on which the First and Second Restatements of
Judgments take differing views. According to the First
Restatement, a judgment based on alternative grounds “is
determinative on both grounds, although either alone
would have been sufficient to support the judgment.”
Restatement of Judgments §68, Comment n (1942). Other
authorities agree. See 18 C. Wright, A. Miller, & E.
Cooper, Federal Practice and Procedure §4421, p. 613 (3d
ed. 2016) (noting “substantial support in federal decisions”
for this approach).7 But the Second Restatement reversed
this view, recommending that a judgment based on the
determination of two independent issues “is not conclusive
with respect to either issue standing alone.” §27, Com-
ment i, at 259.
There is scant explanation for this change in position
beyond a reference in the Reporter’s Note to a single deci-
sion of the United States Court of Appeals for the Second
Circuit. Id., Reporter’s Note, Comment i, at 270 (discuss-
ing Halpern v. Schwartz, 426 F. 2d 102 (1970)). But even
that court has subsequently explained that Halpern was
“not intended to have . . . broad impact outside the [bank-
ruptcy] context,” and it continues to follow the rule of the
First Restatement “in circumstances divergent from those
in Halpern.” Winters v. Lavine, 574 F. 2d 46, 67 (1978). It
thus appears that in this portion of the Second Restate-
ment, the Reporters adopted a prescriptive rather than a
descriptive approach. In such situations, the Restatement
loses much of its value. See Kansas v. Nebraska, 574 U. S.
——————
7 See, e.g., Jean Alexander Cosmetics, Inc. v. L’Oreal USA, Inc., 458
F. 3d 244, 251–257 (CA3 2006) (collecting cases); In re Westgate-
California Corp., 642 F. 2d 1174, 1176–1177 (CA9 1981); Winters v.
Lavine, 574 F. 2d 46, 66–67 (CA2 1978); Irving Nat’l Bank v. Law, 10
F. 2d 721, 724 (CA2 1926) (Hand, J.).
Cite as: 587 U. S. ____ (2019) 15
ALITO, J., dissenting
445, 475 (2015) (Scalia, J., concurring in part and dissent-
ing in part).
The First Restatement has the more compelling posi-
tion. There appear to be two principal objections to giving
alternative grounds preclusive effect. The first is that the
court rendering the judgment may not have given each of
the grounds “the careful deliberation and analysis normally
applied to essential issues.” Halpern, supra, at 105. This
argument is based on an unjustified assessment of the
way in which courts do their work. Even when a court
bases its decision on multiple grounds, “it is reasonable to
expect that such a finding is the product of careful judicial
reasoning.” Jean Alexander Cosmetics, Inc. v. L’Oreal
USA, Inc., 458 F. 3d 244, 254 (CA3 2006).
The other argument cited for the Second Restatement’s
rule is that the losing party may decline to appeal if one of
the two bases for a judgment is strong and the other is
weak. §27, Comment i, at 259. There are reasons to be
skeptical of this argument as well. While there may be
cases in which the presence of multiple grounds causes the
losing party to forgo an appeal, that is likely to be true in
only a small subset of cases involving such judgments.
Moreover, other aspects of issue-preclusion doctrine
protect against giving binding effect to decisions that
result from unreliable litigation. Issue preclusion applies
only to questions “actually and necessarily determined,”
Montana, 440 U. S., at 153, and a party may be able to
avoid preclusion by showing that it “did not have an ade-
quate opportunity or incentive to obtain a full and fair
adjudication in the initial action.” Restatement (Second)
of Judgments §28(5)(c). To be sure, this exception should
not be applied “without a compelling showing of unfair-
ness, nor should it be based simply on a conclusion that
the first determination was patently erroneous.” Id., §28,
Comment j, at 284. This exception provides an important
safety valve, but it is narrow and clearly does not apply
16 HERRERA v. WYOMING
ALITO, J., dissenting
here. Not only did the Tribe have an opportunity in Repsis
to litigate the subject of the alternative ground, it actually
did so.8
Finally, regardless of whether alternative grounds
always have preclusive effect, it is sufficient to say that, at
least in a declaratory judgment action, each conclusion
provides an independent basis for preclusion. “Since the
very purpose of declaratory relief is to achieve a final and
reliable determination of legal issues, there should be no
quibbling about the necessity principle. Every issue that
the parties have litigated and that the court has under-
taken to resolve is necessary to the judgment, and should
be precluded.” 18 Wright, Federal Practice and Procedure
§4421, at 630; see Henglein v. Colt Industries Operating
Corp., 260 F. 3d 201, 212 (CA3 2001). Because Repsis was
a declaratory judgment action aimed at settling the Tribe’s
hunting rights, that principle suffices to bind Herrera to
Repsis’s resolution of the occupied-land issue.
D
Herrera and the United States offer a variety of other
arguments to avoid the preclusive effect of Repsis, but all
——————
8 From the beginning of the Repsis litigation, Wyoming argued that
Bighorn was occupied land, and the Tribe argued that it was not.
Wyoming pressed this argument in its answer to the Tribe’s declaratory
judgment complaint. Record in No. 92–cv–1002, Doc. 29, p. 4. Wyo-
ming reiterated that argument in its motion for summary judgment
and repeated it in its reply. Id., Doc. 34, pp. 1, 6; id., Doc. 54, pp. 7–8.
The Tribe dedicated a full 10 pages of its summary judgment brief to
the argument that “[t]he Big Horn National Forest [l]ands [are]
‘[u]noccupied [l]ands’ ” of the United States. Id., Doc. 52, pp. 6–15.
Both parties repeated these arguments in their briefs before the Tenth
Circuit. Brief for Appellees 20–29 and Reply Brief for Appellants 2–3,
and n. 6, in No. 94–8097 (1995). And the Tribe pressed this argument
as an independent basis for this Court’s review in its petition for
certiorari, which this Court denied. Pet. for Cert. in Crow Tribe of
Indians v. Repsis, O. T. 1995, No. 95–1560, pp. i, 22–24, cert. denied,
517 U. S. 1221 (1996).
Cite as: 587 U. S. ____ (2019) 17
ALITO, J., dissenting
are unavailing.
Herrera contends that he is not bound by the Repsis
judgment because he was not a party, but this argument is
clearly wrong. Indian hunting rights, like most Indian
treaty rights, are reserved to the Tribe as a whole. Herrera’s
entitlement derives solely from his membership in the
Tribe; it is not personal to him. As a result, a judgment
determining the rights of the Tribe has preclusive effect in
subsequent litigation involving an individual member of
the Tribe. Cf. Hinderlider v. La Plata River & Cherry
Creek Ditch Co., 304 U. S. 92, 106–108 (1938) (judgment
as to water rights of a State is binding on individual resi-
dents of State). That rule applies equally to binding
judgments finding in favor of and against asserted tribal
rights.
Herrera also argues that a judgment in a civil action
should not have preclusive effect in a subsequent criminal
prosecution, but this argument would unjustifiably pre-
vent the use of the declaratory judgment device to deter-
mine potential criminal exposure. The Declaratory Judg-
ment Act provides an equitable remedy allowing a party to
ask a federal court to “declare [the party’s] rights” through
an order with “the force and effect of a final judgment.” 28
U. S. C. §2201(a). The Act thus allows a person to obtain a
definitive ex ante determination of his or her right to
engage in conduct that might otherwise be criminally
punishable. It thereby avoids “putting the challenger to
the choice between abandoning his rights or risking prose-
cution.” MedImmune, Inc. v. Genentech, Inc., 549 U. S.
118, 129 (2007). If the Tribe had prevailed in Repsis,
surely Herrera would expect that Wyoming could not
attempt to relitigate the question in this case and in pros-
ecutions of other members of the Tribe. A declaratory
judgment “is conclusive . . . as to the matters declared”
when the State prevails just as it would be when the party
challenging the State is the winning party. Restatement
18 HERRERA v. WYOMING
ALITO, J., dissenting
(Second) of Judgments §33, at 332.
It is true that we have been cautious about applying the
doctrine of issue preclusion in criminal proceedings. See
e.g., Currier v. Virginia, 585 U. S. ___, ___ (2018) (slip op.,
at 9); Bravo-Fernandez v. United States, 580 U. S. ___, ___
(2016) (slip op., at 4). But we have never adopted the
blanket prohibition that Herrera advances. Instead, we
have said that preclusion doctrines should have “guarded
application.” Id., at ___ (slip op., at 4).
We employ such caution because preclusion rests on “an
underlying confidence that the result achieved in the
initial litigation was substantially correct,” and that confi-
dence, in turn, is bolstered by the availability of appellate
review. Standefer v. United States, 447 U. S. 10, 23, n. 18
(1980); see also Restatement (Second) of Judgments §28,
Comment a, at 274. In Currier and Bravo-Fernandez, we
were reluctant to apply issue preclusion, not because the
subsequent trial was criminal, but because the initial trial
was. While a defense verdict in a criminal trial is gener-
ally not subject to testing on appeal, summary judgment in
a civil declaratory judgment action can be appealed. Indeed,
the Crow Tribe did appeal the District Court’s decision to
the Tenth Circuit and petitioned for our review of the
Tenth Circuit’s decision. The concerns that we articulated
in Currier and Bravo-Fernandez have no bearing here.9
* * *
For these reasons, Herrera is precluded by the judgment
——————
9 Nor is that the only distinction between those cases and this one. In
both Currier and Bravo-Fernandez a party sought preclusion as to an
element of the charged offense. The elements of the charged offense are
not disputed here—Herrera’s asserted treaty right is an affirmative
defense. And while the State bears the burden of proof as to elements
of the offense, under Wyoming law, the defendant asserting an affirma-
tive defense must state a prima facie case before any burden shifts to
the State. See Duckett v. State, 966 P. 2d 941, 948 (Wyo. 1998).
Cite as: 587 U. S. ____ (2019) 19
ALITO, J., dissenting
in Repsis from relitigating the continuing validity of the
hunting right conferred by the 1868 Treaty. Because the
majority has chosen to disregard this threshold problem
and issue a potentially pointless disquisition on the proper
interpretation of the 1868 Treaty, I respectfully dissent.