Page:Herrera v. Wyoming, 587 U. S. (2019) (slip opinion).pdf/34

Rh 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.

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