Page:Herrera v. Wyoming, 587 U. S. (2019) (slip opinion).pdf/37

12 Although the majority in the present case believes that Mille Lacs unquestionably constitutes a sufficient change in the legal context, see ante, at 13, there is a respectable argument on the other side. I would not decide that question because Herrera and other members of the Crow Tribe are bound by the judgment in Repsis even if the change-in-legal-context exception applies.

That is so because the Repsis judgment was based on a second, independently sufficient ground that has nothing to do with Race Horse, namely, that the Bighorn National Forest is not “unoccupied.” Herrera and the United States, appearing as an amicus in his support, try to escape the effect of this alternative ground based on other exceptions to the general rule of issue preclusion. But accepting any of those exceptions would work a substantial change in established principles, and it is fortunate that the majority has not taken that route.

Unfortunately, the track that the majority has chosen is no solution because today’s decision will not prevent the Wyoming courts on remand in this case or in future cases presenting the same issue from holding that the Repsis judgment binds all members of the Crow Tribe who hunt within the Bighorn National Forest. And for the reasons I will explain, such a holding would be correct.

Attempting to justify its approach, the majority claims that the decision below gave preclusive effect to only the