Justice Alito, with whom The Chief Justice, Justice Thomas, and Justice Kavanaugh join, dissenting.

The Court’s opinion in this case takes a puzzling course. The Court holds that members of the Crow Tribe retain a virtually unqualified right under the Treaty Between the United States of America and the Crow Tribe of Indians (1868 Treaty) to hunt on land that is now part of the Bighorn National Forest. This interpretation of the treaty is debatable and is plainly contrary to the decision in Ward v. Race Horse, 163 U. S. 504 (1896), which construed identical language in a closely related treaty. But even if the Court’s interpretation of the treaty is correct, its decision will have no effect if the members of the Crow Tribe are bound under the doctrine of issue preclusion by the judgment in Crow Tribe of Indians v. Repsis, 73 F. 3d 982, 992–993 (CA10 1995) (holding that the hunting right conferred by that treaty is no longer in force).

That judgment was based on two independent grounds, and the Court deals with only one of them. The Court holds that the first ground no longer provides an adequate reason to give the judgment preclusive effect due to an intervening change in the legal context. But the Court sidesteps the second ground and thus leaves it up to the state courts to decide whether the Repsis judgment continues to have binding effect. If it is still binding—and I think it is—then no member of the Tribe will be able to assert the hunting right that the Court addresses. Thus, the Court’s decision to plow ahead on the treaty-interpretation issue is hard to understand, and its discourse on that issue is likely, in the end, to be so much wasted ink.



*13 As the Court notes, the Crow Indians eventually settled in what is now Montana, where they subsequently came into contact with early white explorers and trappers. F. Hoxie, The Crow 26–28, 33 (1989). In an effort to promote peace between Indians and white settlers and to mitigate conflicts between different tribes, the United States negotiated treaties that marked out a territory for each tribe to use as a hunting district. See 2 C. Kappler, Indian Affairs: Laws and Treaties 594 (2d ed. 1904) (Kappler). The Treaty of Fort Laramie of 1851 (1851 Treaty), 11 Stat. 749, created such a hunting district for the Crow.

As white settlement increased, the United States entered into a series of treaties establishing reservations for the Crow and neighboring tribes, and the 1868 Treaty was one such treaty. 15 Stat. 649; Kappler 1008. It set out an 8-million-acre reservation for the Crow Tribe but required the Tribe to cede ownership of all land outside this reservation, including 30 million acres that lay within the hunting district defined by the 1851 Treaty. Under this treaty, however, the Crow kept certain enumerated rights with respect to the use of those lands, and among these was “the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and as long as peace subsists among the whites and Indians on the borders of the hunting districts.” 1868 Treaty, Art. IV, 15 Stat. 650.

Shortly after the signing of the 1868 Treaty, Congress created the Wyoming Territory, which was adjacent to and immediately south of the Crow Tribe’s reservation. The Act creating the Territory provided that “nothing in this act shall be construed to impair the rights of person or property now pertaining to the Indians in said Territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians.” Act of July 25, 1868, ch. 235, 15 Stat. 178. Twenty-two years later, Congress admitted Wyoming as a State “on an equal footing with the original States in all respects whatever.” Act of July 10, 1890, ch. 664, 26 Stat. 222. The following year, Congress passed an Act empowering the President to “set apart and reserve” tracts of public lands owned by the United States as forest reservations. Act of Mar. 3, 1891, ch. 561, § 24, 26 Stat. 1103. Exercising that authority, President Cleveland designated some lands in Wyoming that remained under federal ownership as a forest reservation. Presidential Proclamation No. 30, 29 Stat. 909. Today, those lands make up the Bighorn National Forest. Bighorn abuts the Crow Reservation along the border between Wyoming and Montana and includes land that was previously part of the Crow Tribe’s hunting district.

These enactments did not end legal conflicts between the white settlers and Indians. Almost immediately after Wyoming’s admission to the Union, this Court had to determine the extent of the State’s regulatory power in light of a tribe’s reserved hunting rights. A member of the Shoshone-Bannock Tribes named Race Horse had been arrested by Wyoming officials for taking elk in violation of state hunting laws. Race Horse, supra, at 506. The Shoshone-Bannock Tribes, like the Crow, had accepted a reservation while retaining the right to hunt in the lands previously within their hunting district. Their treaty reserves the same right, using the same language, as the Crow Tribe’s treaty. 1 Race Horse argued that he had the right to hunt at the spot of his alleged offense, as the nearest settlement lay more than 60-miles distant, making the land where he was hunting “unoccupied lands of the United States.” In re Race Horse, 70 F. 598, 599–600 (Wyo. 1895).

*14 This Court rejected Race Horse’s argument, holding that the admission of Wyoming to the Union terminated the hunting right. 163 U. S., at 514. Although the opinion of the Court is not a model of clarity, this conclusion appears to rest on two grounds.

First, the Court held that Wyoming’s admission necessarily ended the Tribe’s hunting right because otherwise the State would lack the power, possessed by every other State, “to regulate the killing of game within [its] borders.” Ibid. Limiting Wyoming’s power in this way, the Court reasoned, would contravene the equal-footing doctrine, which dictates that all States enter the Union with the full panoply of powers enjoyed by the original 13 States at the adoption of the Constitution. Ibid. Under this rationale, the Act of Congress admitting Wyoming could not have preserved the hunting right even if that had been Congress’s wish.

After providing this basis for its holding, however, the Court quickly turned to a second ground, namely, that even if Congress could have limited Wyoming’s authority in this way, it had not attempted to do so. Id., at 515. The Court thought that Congress’s intention not to impose such a restriction on the State was “conveyed by the express terms of the act of admission,” but the Court did not identify the terms to which it was referring. Ibid. It did, however, see support for its decision in the nature of the hunting right reserved under the treaty. This right, the Court observed, was not “of such a nature as to imply [its] perpetuity” but was instead “temporary and precarious,” since it depended on the continuation of several conditions, including at least one condition wholly within the control of the Government—continued federal ownership of the land. Ibid.

Race Horse did not mark a final resolution of the conflict between Wyoming’s regulatory power and tribal hunting rights. Nearly a century later, Thomas Ten Bear, a member of the Crow Tribe, crossed into Wyoming to hunt elk in the Bighorn National Forest, just as Herrera did in this case. Wyoming game officials cited Ten Bear, and he was ultimately convicted of hunting elk without the requisite license. 2 Ten Bear, like Race Horse before him, filed a lawsuit in federal court disputing Wyoming’s authority to regulate hunting by members of his Tribe. Crow Tribe of Indians v. Repsis, 866 F. Supp. 520, 521 (Wyo. 1994). Joined by the Crow Tribe, he argued that the 1868 Treaty—the same treaty at issue here—gave him the right to take elk in the national forest.

The District Court found that challenge indistinguishable from the one addressed in Race Horse. The District Court noted that Race Horse had pointed to “identical treaty language” and had “advanced the identical contention now made by” Ten Bear and the Tribe. Repsis, 866 F. Supp., at 522. Because Race Horse “remain[ed] controlling,” the District Court granted summary judgment to the State.866 F. Supp., at 524.

The Tenth Circuit affirmed that judgment on two independent grounds. First, the Tenth Circuit agreed with the District Court that, under Race Horse, “[t]he Tribe’s right to hunt reserved in the Treaty with the Crows, 1868, was repealed by the act admitting Wyoming into the Union.” Crow Tribe of Indians v. Repsis, 73 F. 3d 982, 992 (1995). Second, as an independent alternative ground for affirmance, the Tenth Circuit held that the Tribe’s hunting right had expired because “the treaty reserved an off-reservation hunting right on ‘unoccupied’ lands and the lands of the Big Horn National Forest are ‘occupied.’ ” Id., at 993. The Tenth Circuit reasoned that “unoccupied” land within the meaning of the treaty meant land that was open for commercial or residential use, and since the creation of the national forest precluded those activities, it followed that the land was no longer “unoccupied” in the relevant sense. Ibid.


*15 The events giving rise to the present case are essentially the same as those in Race Horse and Repsis. During the winter of 2013, Herrera, who was an officer in the Crow Tribe’s fish and game department, contacted Wyoming game officials to offer assistance investigating a number of poaching incidents along the border between Bighorn and the Crow Reservation. 3 After a lengthy discussion in which Herrera asked detailed questions about the State’s investigative capabilities, the Wyoming officials became suspicious of Herrera’s motives. The officials conducted a web search for Herrera’s name and found photographs posted on trophy-hunting and social media websites that showed him posing with bull elk. The officers recognized from the scenery in the pictures that the elk had been killed in Bighorn and were able to locate the sites where the pictures had been taken. At those sites, about a mile south of the fence running along the Bighorn National Forest boundary, state officials discovered elk carcasses. The heads had been taken from the carcasses but much of the meat was abandoned in the field. State officials confronted Herrera, who confessed to the shootings and turned over the heads that he and his companions had taken as trophies. The Wyoming officials cited Herrera for hunting out of season.

Herrera moved to dismiss the citations, arguing that he had a treaty right to hunt in Bighorn. The trial court rejected this argument, concluding that it was foreclosed by the Tenth Circuit’s analysis in Repsis, and the jury found Herrera guilty. On appeal, Herrera continued to argue that he had a treaty right to hunt in Bighorn. The appellate court held that the judgment in Repsis precluded him from asserting a treaty hunting right, and it also held, in the alternative, that Herrera’s treaty rights did not allow him to hunt in Bighorn. This Court granted certiorari.


In seeking review in this Court, Herrera framed this case as implicating only a question of treaty interpretation. But unless the state court was wrong in holding that Herrera is bound by the judgment in Repsis, there is no reason to reach the treaty-interpretation question. For this reason, I would begin with the question of issue preclusion, and because I believe that Herrera is bound by the adverse decision on that issue in Repsis, I would not reach the treaty-interpretation issue.


It is “a fundamental precept of common-law adjudication” that “an issue once determined by a competent court is conclusive.” Arizona v. California, 460 U. S. 605, 619 (1983). “The idea is straightforward: Once a court has decided an issue, it is forever settled as between the parties, thereby protecting against the expense and vexation attending multiple lawsuits, conserving judicial resources, and fostering reliance on judicial action by minimizing the possibility of inconsistent verdicts.” B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U. S. 138, ___ (2015) (slip op., at 8) (internal quotation marks, citation, and alterations omitted). Succinctly put, “a losing litigant deserves no rematch after a defeat fairly suffered.” Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U. S. 104, 107 (1991).

Under federal issue-preclusion principles, 4 “once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation.” Montana v. United States, 440 U. S. 147, 153 (1979). That standard for issue preclusion is met here.

*16 In Repsis, the central issue—and the question on which the Crow Tribe sought a declaratory judgment—was whether members of the Tribe “have an unrestricted right to hunt and fish on Big Horn National Forest lands.” 866 F. Supp., at 521. The Tenth Circuit’s judgment settled that question by holding that “the Tribe and its members are subject to the game laws of Wyoming.” 73 F. 3d, at 994. In this case, Herrera asserts the same hunting right that was actually litigated and decided against his Tribe in Repsis. He does not suggest that either the Federal District Court or the Tenth Circuit lacked jurisdiction to 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 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?

*17 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 retardation” did not render a defendant ineligible for a death sentence but was treated as simply a mitigating factor to be taken into account in weighing whether such a sentence should be imposed. When Bies contested his death sentence on appeal, the state appellate court observed that he suffered from a mild form of intellectual disability, but it nevertheless affirmed his sentence. Years later, in Atkins v. Virginia, 536 U. S. 304 (2002), this Court ruled that an intellectually disabled individual cannot be executed, and the Sixth Circuit then held that the state court’s prior statements about Bies’s condition barred his execution under issue-preclusion principles.

This Court reversed, and its primary reason for doing so has no relation to the question presented here. We found that issue preclusion was not available to Bies because he had not prevailed in the first action; despite the state court’s recognition of mild intellectual disability as a mitigating factor, it had affirmed his sentence. As we put it, “[i]ssue preclusion ... does not transform final judgment losers ... into partially prevailing parties.” Bies, 556 U. S., at 829; see also id., at 835.

Only after providing this dispositive reason for rejecting the Sixth Circuit’s invocation of issue preclusion did we go on to cite the Restatement’s discussion of the change-in-law exception. And we then quickly noted that the issue addressed by the state appellate courts prior to Atkins (“[m]ental retardation as a mitigator”) was not even the same issue as the issue later addressed after Atkins. Bies, supra, at 836 (the two “are discrete legal issues”). So Bies is very far afield. 5

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.


*18 Attempting to justify its approach, the majority claims that the decision below gave preclusive effect to only the first ground adopted by the Tenth Circuit in Repsis—that is, the ground that relied on Race Horse. Ante, at 18, n. 5. But nowhere in the decision below can any such limitation be found. The Wyoming appellate court discussed the second ground for the Repsis judgment, see App. to Pet. for Cert. 22 (“[T]he creation of the Big Horn National Forest resulted in the ‘occupation’ of the land, extinguishing the off-reservation hunting right”), and it concluded that the judgment in Repsis, not just one of the grounds for that judgment, “preclude[s] Herrera from attempting to relitigate the validity of the off-reservation hunting right that was previously held to be invalid,” App. to Pet. for Cert. 31. 6


Herrera takes a different approach in attempting to circumvent the effect of the alternative Repsis ground. When a judgment rests on two independently sufficient grounds, he contends, neither ground should be regarded as having an issue-preclusive effect. This argument raises an important question that this Court has never decided and one on which the First and Second Restatements of Judgments take differing views. According to the First Restatement, a judgment based on alternative grounds “is determinative on both grounds, although either alone would have been sufficient to support the judgment.” Restatement of Judgments § 68, Comment n (1942). Other authorities agree. See 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4421, p. 613 (3d ed. 2016) (noting “substantial support in federal decisions” for this approach). 7 But the Second Restatement reversed this view, recommending that a judgment based on the determination of two independent issues “is not conclusive with respect to either issue standing alone.” § 27, Comment i, at 259.

There is scant explanation for this change in position beyond a reference in the Reporter’s Note to a single decision of the United States Court of Appeals for the Second Circuit. Id., Reporter’s Note, Comment i, at 270 (discussing Halpern v. Schwartz, 426 F. 2d 102 (1970)). But even that court has subsequently explained that Halpern was “not intended to have ... broad impact outside the [bankruptcy] context,” and it continues to follow the rule of the First Restatement “in circumstances divergent from those in Halpern.” Winters v. Lavine, 574 F. 2d 46, 67 (1978). It thus appears that in this portion of the Second Restatement, the Reporters adopted a prescriptive rather than a descriptive approach. In such situations, the Restatement loses much of its value. See Kansas v. Nebraska, 574 U. S. 445, 475 (2015) (Scalia, J., concurring in part and dissenting in part).

*19 The First Restatement has the more compelling position. There appear to be two principal objections to giving alternative grounds preclusive effect. The first is that the court rendering the judgment may not have given each of the grounds “the careful deliberation and analysis normally applied to essential issues.” Halpern, supra, at 105. This argument is based on an unjustified assessment of the way in which courts do their work. Even when a court bases its decision on multiple grounds, “it is reasonable to expect that such a finding is the product of careful judicial reasoning.” Jean Alexander Cosmetics, Inc. v. L’Oreal USA, Inc., 458 F. 3d 244, 254 (CA3 2006).

The other argument cited for the Second Restatement’s rule is that the losing party may decline to appeal if one of the two bases for a judgment is strong and the other is weak. § 27, Comment i, at 259. There are reasons to be skeptical of this argument as well. While there may be cases in which the presence of multiple grounds causes the losing party to forgo an appeal, that is likely to be true in only a small subset of cases involving such judgments.

Moreover, other aspects of issue-preclusion doctrine protect against giving binding effect to decisions that result from unreliable litigation. Issue preclusion applies only to questions “actually and necessarily determined,” Montana, 440 U. S., at 153, and a party may be able to avoid preclusion by showing that it “did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action.” Restatement (Second) of Judgments § 28(5)(c). To be sure, this exception should not be applied “without a compelling showing of unfairness, nor should it be based simply on a conclusion that the first determination was patently erroneous.” Id., § 28, Comment j, at 284. This exception provides an important safety valve, but it is narrow and clearly does not apply here. Not only did the Tribe have an opportunity in Repsis to litigate the subject of the alternative ground, it actually did so. 8

Finally, regardless of whether alternative grounds always have preclusive effect, it is sufficient to say that, at least in a declaratory judgment action, each conclusion provides an independent basis for preclusion. “Since the very purpose of declaratory relief is to achieve a final and reliable determination of legal issues, there should be no quibbling about the necessity principle. Every issue that the parties have litigated and that the court has undertaken to resolve is necessary to the judgment, and should be precluded.” 18 Wright, Federal Practice and Procedure § 4421, at 630; see Henglein v. Colt Industries Operating Corp., 260 F. 3d 201, 212 (CA3 2001). Because Repsis was a declaratory judgment action aimed at settling the Tribe’s hunting rights, that principle suffices to bind Herrera to Repsis’s resolution of the occupied-land issue.


*20 Herrera and the United States offer a variety of other arguments to avoid the preclusive effect of Repsis, but all are unavailing.

Herrera contends that he is not bound by the Repsis judgment because he was not a party, but this argument is clearly wrong. Indian hunting rights, like most Indian treaty rights, are reserved to the Tribe as a whole. Herrera’s entitlement derives solely from his membership in the Tribe; it is not personal to him. As a result, a judgment determining the rights of the Tribe has preclusive effect in subsequent litigation involving an individual member of the Tribe. Cf. Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 106–108 (1938) (judgment as to water rights of a State is binding on individual residents of State). That rule applies equally to binding judgments finding in favor of and against asserted tribal rights.

Herrera also argues that a judgment in a civil action should not have preclusive effect in a subsequent criminal prosecution, but this argument would unjustifiably prevent the use of the declaratory judgment device to determine potential criminal exposure. The Declaratory Judgment Act provides an equitable remedy allowing a party to ask a federal court to “declare [the party’s] rights” through an order with “the force and effect of a final judgment.” 28 U. S. C. § 2201(a). The Act thus allows a person to obtain a definitive ex ante determination of his or her right to engage in conduct that might otherwise be criminally punishable. It thereby avoids “putting the challenger to the choice between abandoning his rights or risking prosecution.” MedImmune, Inc. v. Genentech, Inc., 549 U. S. 118, 129 (2007). If the Tribe had prevailed in Repsis, surely Herrera would expect that Wyoming could not attempt to relitigate the question in this case and in prosecutions of other members of the Tribe. A declaratory judgment “is conclusive ... as to the matters declared” when the State prevails just as it would be when the party challenging the State is the winning party. Restatement (Second) of Judgments § 33, at 332.

It is true that we have been cautious about applying the doctrine of issue preclusion in criminal proceedings. See e.g., Currier v. Virginia, 585 U. S. ___, ___ (2018) (slip op., at 9); Bravo-Fernandez v. United States, 580 U. S. ___, ___ (2016) (slip op., at 4). But we have never adopted the blanket prohibition that Herrera advances. Instead, we have said that preclusion doctrines should have “guarded application.” Id., at ___ (slip op., at 4).

We employ such caution because preclusion rests on “an underlying confidence that the result achieved in the initial litigation was substantially correct,” and that confidence, in turn, is bolstered by the availability of appellate review. Standefer v. United States, 447 U. S. 10, 23, n. 18 (1980); see also Restatement (Second) of Judgments § 28, Comment a, at 274. In Currier and Bravo-Fernandez, we were reluctant to apply issue preclusion, not because the subsequent trial was criminal, but because the initial trial was. While a defense verdict in a criminal trial is generally not subject to testing on appeal, summary judgment in a civil declaratory judgment action can be appealed. Indeed, the Crow Tribe did appeal the District Court’s decision to the Tenth Circuit and petitioned for our review of the Tenth Circuit’s decision. The concerns that we articulated in Currier and Bravo-Fernandez have no bearing here. 9

[. . .]

*21 For these reasons, Herrera is precluded by the judgment in Repsis from relitigating the continuing validity of the hunting right conferred by the 1868 Treaty. Because the majority has chosen to disregard this threshold problem and issue a potentially pointless disquisition on the proper interpretation of the 1868 Treaty, I respectfully dissent.]