Page:Herrera v. Wyoming, 587 U. S. (2019) (slip opinion).pdf/14

Rh 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 Shoshone-Bannock 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.

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.

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