(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 promised 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 hunting 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 forest pursuant to the 1868 Treaty, and a jury convicted him. On appeal, 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 therefore 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 survived Wyoming’s statehood, the court added, it did not permit Herrera to hunt in Bighorn National Forest because the treaty right applies 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 inquiry for treaty termination analysis is whether Congress has “clearly 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 exception. 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 accurate historical picture, the State, by using statehood as a proxy for 

occupation, subverts this Court’s clear instruction that treatyprotected 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 “occupied” 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 Commercial Passenger Fishing Vessel Assn., 443 U. S. 658, 676, it is clear 

that the Tribe would have understood the word “unoccupied” to denote an area free of residence or settlement by non-Indians. That interpretation follows from several cues in the treaty’s text. For example, 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 areas 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 forest lands from settlement would not categorically transform the territory into an area resided on or settled by non-Indians; quite the opposite. 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 decided 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 GINSBURG, BREYER, KAGAN, and GORSUCH, JJ., joined. ALITO, J., filed a dissenting 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, Washington, 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, including 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 Commission 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 importance 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 offreservation, 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 (Wyoming 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 Herrera’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 unsuccessfully 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 offreservation 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 became a State. 73 F. 3d, at 992–993. The Tenth Circuit’s 

decision in Repsis relied heavily on a 19th-century decision 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. Reasoning 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 following Repsis, the court concluded that the treaty right applies 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 judgment 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 borders 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 ShoshoneBannock 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” specified 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, fishing, 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 decided that the treaty rights of the Chippewa bands survived 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 decisions.” 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. Department of Game of Wash., 391 U. S. 392, 398 (1968)). 

“[B]ecause treaty rights are reconcilable with state sovereignty over natural resources,” the Mille Lacs Court concluded, 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 admitting 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 Congress may unilaterally repudiate, see Dion, 476 U. S., at 

738—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 circumstances. 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. Specifically, 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 “impliedly repealed,” Mille Lacs disavowed that earlier holding. 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 natural 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 Respondent 26, but the State contends that Mille Lacs reaffirmed 

the alternative holding in Race Horse that the ShoshoneBannock Treaty right (and thus the identically phrased 

right in the 1868 Treaty with the Crow Tribe) was intended to end at statehood. We are unpersuaded. As explained 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 judgment . . . foreclos[es] successive litigation of an issue of 

—————— 

1Notably, 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 intervening “‘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 (explaining that a prior judgment was conclusive “[a]bsent significant 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 repetitious 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 

—————— 

2The 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. Commerce 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 Improvement 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 holding in Race Horse and no ability to predict the analysis

this Court would adopt in Mille Lacs. Mille Lacs repudiated 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 preclusion, 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, Wyoming’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). 3We 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 Procedure §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 exercising their treaty rights when necessary for conservation is not sufficient 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 Congress intended to abrogate the 1868 Treaty right through

the Wyoming Statehood Act, much less the “‘clear evidence’” this Court’s precedent requires. Mille Lacs, 526 

U. S., at 203.4 

Nor is there any 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. 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’ intentions, with any ambiguities resolved in favor of the Indians,” 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 terminate,” it is to those circumstances that the Court must 

look to determine if the right ends at statehood. Mille 

—————— 

4Recall also that the Act establishing the Wyoming Territory declared 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 nonIndians 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 necessarily 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 Commissioner 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 importance of the hunting right to the negotiations, Wyoming points to no evidence that federal negotiators ever

proposed that the right would end at statehood. This 

silence is especially telling because five States encompassing 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 pursuant 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 explicitly identified as a treaty expiration point. Instead, 

Wyoming draws on historical sources to assert that statehood, as a practical matter, marked the arrival of “civilization” 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 evidence 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 understood occupation to denote some form of residence or settlement. 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 continuing 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 Wyoming 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 circumstances 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 

—————— 

5Wyoming argues that the judgment below should be affirmed because 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 primary 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 affirmance,” 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 Supplemental 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 understood 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 hunting 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. Contemporaneous 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 factintensive 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 occupation 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 Cleveland’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 explained, 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 occupied. 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 limited. 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 inconsistent 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 decision 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 continues 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 treatyinterpretation issue is hard to understand, and its discourse 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 negotiated 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 entered 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 reservation, 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 reservation. 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 

—————— 

1The 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, making 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 necessarily 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 Congress’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 express 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 conditions, 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 member 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 indistinguishable 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 contention now made by” Ten Bear and the Tribe. Repsis, 866 

F. Supp., at 522. Because Race Horse “remain[ed] controlling,” the District Court granted summary judgment to the

State. 866 F. Supp., at 524.

The Tenth Circuit affirmed that judgment on two independent grounds. First, the Tenth Circuit agreed with the 

—————— 

2Wyoming officials enforce the State’s hunting laws on national forest 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 affirmance, the Tenth Circuit held that the Tribe’s hunting 

right had expired because “the treaty reserved an offreservation 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 

—————— 

3Such 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 delineated 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 confronted 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 interpretation. 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 preclusion, 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 adjudication” 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 parties, 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 alterations 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 

—————— 

4The 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 Wyoming 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 judgment 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 proposition that a change in law may alter a judgment’s preclusive 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 dangerously 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 questionable 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 (applying the “Race Horse inquiry” but factually distinguishing 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 statehood.” 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 observed 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 judgment 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-inlaw 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 

—————— 

5Nor 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 distinctions 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 question 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 substantial 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 relitigate 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 

—————— 

6The 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 fundamental 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, Comment i, at 259. 

There is scant explanation for this change in position 

beyond a reference in the Reporter’s Note to a single decision of the United States Court of Appeals for the Second 

Circuit. Id., Reporter’s Note, Comment i, at 270 (discussing 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 [bankruptcy] 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 Restatement, 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. 

—————— 

7See, e.g., Jean Alexander Cosmetics, Inc. v. L’Oreal USA, Inc., 458 

F. 3d 244, 251–257 (CA3 2006) (collecting cases); In re WestgateCalifornia 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 dissenting in part).

The First Restatement has the more compelling position. 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 adequate 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 unfairness, 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 undertaken 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 

—————— 

8From 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. Wyoming 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 residents 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 prevent the use of the declaratory judgment device to determine potential criminal exposure. The Declaratory Judgment 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 prosecution.” 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 prosecutions 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 confidence, 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 generally 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 

—————— 

9Nor 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 affirmative 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.