Page:Herrera v. Wyoming, 587 U. S. (2019) (slip opinion).pdf/16

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.^[1]

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).

1. 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 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.”