Page:Herrera v. Wyoming, 587 U. S. (2019) (slip opinion).pdf/21

18 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. Wyoming 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thus makes clear that the state court gave issue-preclusive effect only to Repsis’ holding that the 1868 Treaty was no longer valid, not to Repsis’ independent, narrower holding that Bighorn National Forest in particular was “occupied” land.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).