Page:Herrera v. Wyoming, 587 U. S. (2019) (slip opinion).pdf/35

10 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