NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the
Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal
errors, in order that corrections may be made before the
preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–551
_________________
KEN L. SALAZAR, SECRETARY OF THE INTERIOR, et
al., PETITIONERS
v. RAMAH NAVAJO CHAPTER et al.
on writ of certiorari to the united states
court of appeals for the tenth circuit
[June 18, 2012]
Justice Sotomayor delivered the opinion of the
Court.
The Indian Self-Determination and Education
Assistance Act (ISDA), 25 U. S. C. §450
et seq., directs the Secretary of the Interior to enter
into contracts with willing tribes, pursuant to which those tribes
will provide services such as education and law enforcement that
otherwise would have been provided by the Federal Government. ISDA
mandates that the Secretary shall pay the full amount of
“contract support costs” incurred by tribes in
performing their contracts. At issue in this case is whether the
Government must pay those costs when Congress appropriates
sufficient funds to pay in full any individual contractor’s
contract support costs, but not enough funds to cover the aggregate
amount due every contractor. Consistent with longstanding
principles of Government contracting law, we hold that the
Government must pay each tribe’s contract support costs in
full.
I
A
Congress enacted ISDA in 1975 in order to
achieve “maximum Indian participation in the direction of
educational as well as other Federal services to Indian communities
so as to render such services more responsive to the needs and
desires of those communities.” 25 U. S. C.
§450a(a). To that end, the Act directs the Secretary of the
Interior, “upon the request of any Indian tribe
. . . to enter into a self-determination contract
. . . to plan, conduct, and administer” health,
education, economic, and social programs that the Secretary
otherwise would have administered. §450f(a)(1).
As originally enacted, ISDA required the
Government to provide contracting tribes with an amount of funds
equiv- alent to those that the Secretary “would have other-
wise provided for his direct operation of the programs.”
§106(h), 88Stat. 2211. It soon became apparent that this
secretarial amount failed to account for the full costs to tribes
of providing services. Because of “concern with
Government’s past failure adequately to reimburse
tribes’ indirect administrative costs,”
Cherokee
Nation of Okla. v.
Leavitt,
543 U.S.
631, 639 (2005), Congress amended ISDA to require the Secretary
to contract to pay the “full amount” of “contract
support costs” related to each self-determination contract,
§§450j–1(a)(2), (g).[
1] The Act also provides, however, that
“[n]otwithstanding any other provision in [ISDA], the
provision of funds under [ISDA] is subject to the availability of
appropriations.” §450j–1(b).
Congress included a model contract in ISDA and
directed that each tribal self-determination contract “shall
. . . contain, or incorporate [it] by reference.”
§450
l(a)(1). The model contract specifies that
“ ‘[s]ubject to the availability of
appropriations, the Secretary shall make avail- able to the
Contractor the total amount specified in the annual funding
agreement’ ” between the Secretary and the tribe.
§450
l(c), (model agreement §1(b)(4)). That amount
“ ‘shall not be less than the applicable amount
determined pursuant to [§450j–1(a)],’ ”
which includes contract support costs.
Ibid.
;
§450j–1(a)(2). The contract indicates that
“ ‘[e]ach provision of [ISDA] and each provision
of this Contract shall be liberally construed for the benefit of
the Contractor . . . .’ ”
§450
l(c), (model agreement §1(a)(2)). Finally, the
Act makes clear that if the Government fails to pay the amount
contracted for, then tribal contractors are entitled to pursue
“money dam- ages” in accordance with the Contract
Disputes Act. §450m–1(a).
B
During Fiscal Years (FYs) 1994 to 2001,
respondent Tribes contracted with the Secretary of the Interior to
provide services such as law enforcement, environmental protection,
and agricultural assistance. The Tribes fully performed. During
each FY, Congress appropriated a total amount to the Bureau of
Indian Affairs (BIA) “for the operation of Indian
programs.” See,
e.g., Department of the Interior and
Related Agencies Appropriations Act, 2000, 113Stat.
1501A–148. Of that sum, Congress provided that “not to
exceed [a particular amount] shall be available for payments to
tribes and tribal organiza- tions for contract support costs”
under ISDA.
E.g.,
ibid. Thus, in FY 2000, for
example, Congress appropriated $1,670,444,000 to the BIA, of which
“not to exceed $120,229,000” was allocated for contract
support costs.
Ibid.
During each relevant FY, Congress appropriated
sufficient funds to pay in full any individual tribal
contractor’s contract support costs. Congress did not,
however, appropriate sufficient funds to cover the contract support
costs due all tribal contractors collectively. Between FY 1994 and
2001, appropriations covered only between 77% and 92% of
tribes’ aggregate contract support costs. The extent of the
shortfall was not revealed until each fiscal year was well
underway, at which point a tribe’s performance of its
contractual obligations was largely complete. See 644 F.3d 1054,
1061 (CA10 2011). Lacking funds to pay each contractor in full, the
Secretary paid tribes’ contract support costs on a uniform,
pro rata basis. Tribes responded to these shortfalls by reducing
ISDA services to tribal members, diverting tribal resources from
non-ISDA programs, and forgoing opportunities to contract in
furtherance of Congress’ self-determination objective. GAO,
V. Rezendes, Indian Self-Determination Act: Shortfalls in Indian
Contract Support Costs Need to Be Addressed 3–4
(GAO/RCED–99–150, 2009).
Respondent Tribes sued for breach of contract
pursuant to the Contract Disputes Act, 41 U. S. C.
§§601–613, alleging that the Government failed to
pay the full amount of contract support costs due from FY 1994
through 2001, as required by ISDA and their contracts. The United
States District Court for the District of New Mexico granted
summary judgment for the Government. A divided panel of the United
States Court of Appeals for the Tenth Circuit reversed. The court
reasoned that Congress made sufficient appropriations
“legally available” to fund any individual tribal
contractor’s contract support costs, and that the
Government’s contractual commitment was therefore binding.
644 F. 3d, at 1063–1065. In such cases, the Court of
Appeals held that the Government is liable to each contractor for
the full contract amount. Judge Hartz dissented, contending that
Congress intended to set a maximum limit on the Government’s
liability for contract support costs. We granted certiorari to
resolve a split among the Courts of Appeals, 565 U. S. ___
(2012), and now affirm.[
2]
II
A
In evaluating the Government’s
obligation to pay tribes for contract support costs, we do not
write on a clean slate. Only seven years ago, in
Cherokee
Nation, we also con- sidered the Government’s promise to
pay contract sup- port costs in ISDA self-determination contracts
that made the Government’s obligation “subject to the
availability of appropriations.” 543 U. S., at
634–637. For each FY at issue, Congress had appropriated to
the Indian Health Service (IHS) a lump sum between $1.277 and
$1.419 billion, “far more than the [contract support cost]
amounts” due under the Tribes’ individual contracts.
Id., at 637; see
id., at 636 (Cherokee Nation and
Shoshone-Paiute Tribes filed claims seeking $3.4 and $3.5 million,
respectively). The Government contended, however, that Congress had
appropriated inadequate funds to enable the IHS to pay the
Tribes’ contract support costs in full, while meeting all of
the agency’s competing fiscal priorities.
As we explained, that did not excuse the
Government’s responsibility to pay the Tribes. We stressed
that the Government’s obligation to pay contract support
costs should be treated as an ordinary contract promise, noting
that ISDA “uses the word ‘contract’ 426 times to
describe the nature of the Government’s promise.”
Id., at 639. As even the Government conceded, “in the
case of ordinary contracts . . . ‘if the amount of
an unrestricted appropriation is sufficient to fund the contract,
the contractor is entitled to payment
even if the agency has
allocated the funds to another purpose or assumes other
obligations that exhaust the funds.’ ”
Id.,
at 641. It followed, therefore, that absent “something
special about the promises at issue,” the Government was
obligated to pay the Tribes’ contract support costs in full.
Id., at 638.
We held that the mere fact that ISDA
self-determination contracts are made “subject to the
availability of appropriations” did not warrant a special
rule.
Id., at 643 (internal quotation marks omitted). That
commonplace provision, we explained, is ordinarily satisfied so
long as Congress appropriates adequate legally unrestricted funds
to pay the contracts at issue. See
ibid. Because Congress
made sufficient funds legally available to the agency to pay the
Tribes’ contracts, it did not matter that the BIA had
allocated some of those funds to serve other purposes, such that
the remainder was insufficient to pay the Tribes in full. Rather,
we agreed with the Tribes that “as long as Congress has
appropriated sufficient legally unrestricted funds to pay the
contracts at issue,” the Government’s promise to pay
was binding.
Id., at 637–638.
Our conclusion in
Cherokee Nation
followed directly from well-established principles of Government
contracting law. When a Government contractor is one of several
persons to be paid out of a larger appropriation sufficient in
itself to pay the contractor, it has long been the rule that the
Government is responsible to the contractor for the full amount due
under the contract, even if the agency exhausts the appropriation
in service of other permissible ends. See
Ferris v.
United States, 27 Ct. Cl. 542, 546 (1892);
Dougherty
v.
United States, 18 Ct. Cl. 496, 503 (1883); see also 2
GAO, Principles of Federal Appropriations Law, p. 6–17 (2d
ed. 1992) (hereinafter GAO Redbook).[
3] That is so “even if an agency’s total
lump-sum appropriation is insufficient to pay
all the
contracts the agency has made.”
Cherokee Nation, 543
U. S., at 637. In such cases, “[t]he United States are
as much bound by their contracts as are individuals.”
Lynch v.
United States,
292 U.S.
571, 580 (1934) (internal quotation marks omitted). Although
the agency itself cannot disburse funds beyond those appropriated
to it, the Government’s “valid obligations will remain
enforceable in the courts.” GAO Redbook, p. 6–17.
This principle safeguards both the expectations
of Government contractors and the long-term fiscal interests of the
United States. For contractors, the
Ferris rule reflects
that when “a contract is but one activity under a larger
appropriation, it is not reasonable to expect the contractor to
know how much of that appropriation remains available for it at any
given time.” GAO Redbook, p. 6–18. Contractors are
responsible for knowing the size of the pie, not how the agency
elects to slice it. Thus, so long as Congress appropriates adequate
funds to cover a prospective contract, contractors need not keep
track of agencies’ shifting priorities and competing
obligations; rather, they may trust that the Government will honor
its contractual promises.
Dougherty, 18 Ct. Cl., at 503. In
such cases, if an agency overcommits its funds such that it cannot
fulfill its contractual commitments, even the Government has
acknowledged that “[t]he risk of over-obligation may be found
to fall on the agency,” not the contractor. Brief for Federal
Parties in
Cherokee Nation v.
Leavitt, O. T. 2004,
No. 02–1472 et al., p. 24 (hereinafter Brief for
Federal Parties).
The rule likewise furthers “the
Government’s own long-run interest as a reliable contracting
partner in the myr- iad workaday transaction of its
agencies.”
United States v.
Winstar Corp.,
518 U.S.
839, 883 (1996) (plurality opinion). If the Government could be
trusted to fulfill its promise to pay only when more pressing
fiscal needs did not arise, would-be contractors would bargain
warily—if at all—and only at a premium large enough to
account for the risk of nonpayment. See,
e.g., Logue, Tax
Transitions, Opportunistic Retroactivity, and the Benefits of
Government Precommitment, 94 Mich. L. Rev. 1129, 1146 (1996).
In short, contracting would become more cumbersome and expensive
for the Government, and willing partners more scarce.
B
The principles underlying
Cherokee
Nation and
Ferris dictate the result in this case. Once
“Congress has appropriated sufficient legally unrestricted
funds to pay the contracts at issue, the Government normally cannot
back out of a promise to pay on grounds of ‘insufficient
appropriations,’ even if the contract uses language such as
‘subject to the availability of appropriations,’ and
even if an agency’s total lump-sum appropriation is
insufficient to pay
all the contracts the agency has
made.”
Cherokee Nation, 543 U. S., at 637; see
also
id., at 638 (“[T]he Government denies none of
this”).
That condition is satisfied here. In each FY
between 1994 and 2001, Congress appropriated to the BIA a lump-sum
from which “not to exceed” between $91 and $125 million
was allocated for contract support costs, an amount that exceeded
the sum due any tribal contractor. Within those constraints, the
ability to direct those funds was “ ‘committed to
agency discretion by law.’ ”
Lincoln v.
Vigil,
508 U.S.
182, 193 (1993) (quoting 5 U. S. C. §701(a)(2)).
Nothing, for instance, prevented the BIA from paying in full
respondent Ramah Navajo Chapter’s contract support costs
rather than other tribes’, whether based on its greater need
or simply because it sought payment first.[
4] See
International Union, United Auto., Aerospace
& Agricultural Implement Workers of Am. v.
Donovan,
746 F.2d 855, 861 (CADC 1984) (Scalia, J.) (“A lump-sum
appropriation leaves it to the recipient agency (as a matter of
law, at least) to distribute the funds among some or all of the
permissible objects as it sees fit”). And if there was any
doubt that that general rule applied here, ISDA’s statutory
language itself makes clear that the BIA may allocate funds to one
tribe at the expense of another. See §450j–1(b)
(“[T]he Secretary is not required to reduce funding for
programs, projects, or activities serving a tribe to make funds
available to another tribe or tribal or- ganization under this
[Act]”). The upshot is that the funds appropriated by
Congress were legally available to pay any individual tribal
contractor in full. See 1 GAO Redbook, p. 4–6 (3d ed.
2004).
The Government’s contractual promise to
pay each tribal contractor the “full amount of funds to which
the contractor [was] entitled,” §450j–1(g), was
therefore binding. We have expressly rejected the
Government’s argument that “the tribe should bear the
risk that a total lump-sum appropriation (though sufficient to
cover its own contracts) will not prove sufficient to pay
all similar contracts.”
Cherokee Nation, 543
U. S.
, at 638. Rather, the tribal contractors were
entitled to rely on the Government’s promise to pay because
they were “not chargeable with knowledge” of the
BIA’s administration of Congress’ appropriation,
“nor [could their] legal rights be affected or impaired by
its maladministration or by its diversion.”
Ferris, 27
Ct. Cl., at 546.
As in
Cherokee Nation, we decline the
Government’s invitation to ascribe “special, rather
than ordinary” meaning to the fact that ISDA makes contracts
“subject to the availability of
appropriations.”[
5] 543
U. S., at 644. Under our previous interpretation of that
language, that condition was satisfied here because Congress
appropriated adequate funds to pay in full any individual
contractor. It is important to afford that language a
“uniform interpretation” in this and comparable
statutes, “lest legal uncertainty undermine
contractors’ confidence that they will be paid, and in turn
increase the cost to the Government of purchasing goods and
services.”
Ibid. It would be particularly anomalous to
read the statutory language differently here. Contracts made under
ISDA specify that “ ‘[e]ach provision of the
[ISDA] and each provision of this Contract shall be liberally
construed for the benefit of the
Contractor. . . .’ ”
§450
l(c), (model agreement §1(a)(2)). The
Government, in effect, must demonstrate that its reading is clearly
required by the statutory language. Accordingly, the Government
cannot back out of its contractual promise to pay each
Tribe’s full contract support costs.
III
A
The Government primarily seeks to distinguish
this case from
Cherokee Nation and
Ferris on the
ground that Congress here appropriated “not to exceed”
a given amount for contract support costs, thereby imposing an
express cap on the total funds available. See Brief for Petitioners
26, 49. The Government argues, on this basis, that
Ferris
and
Cherokee Nation involved “contracts made against
the back- drop of unrestricted, lump-sum appropriations,”
while this case does not. See Brief for Petitioners 49, 26.
That premise, however, is inaccurate. In
Ferris, Congress appropriated “[f]or improving
Delaware River below Bridesburg, Pennsylvania, forty-five thousand
dollars.” 20Stat. 364. As explained in the Government’s
own appropriations law handbook, the “not to exceed”
language at issue in this case has an identical meaning to the
quoted language in
Ferris. See GAO Redbook, p. 6–5
(“Words like ‘not to exceed’ are not the only way
to establish a maximum limitation. If the appropriation includes a
specific amount for a particular object (such as ‘For Cuban
cigars, $100’), then the appropriation is a maximum which may
not be exceeded”). The appropriation in
Cherokee
Nation took a similar form. See,
e.g., 108Stat.
2527–2528 (“For expenses necessary to carry out
. . . ISDA [and certain other enumerated Acts],
$1,713,052,000”). There is no ba- sis, therefore, for
distinguishing the class of appropria- tion in those cases from
this one. In each case, the agency remained free to allocate funds
among multiple contractors, so long as the contracts served the
purpose Congress identified.
This result does not leave the “not to
exceed” language in Congress’ appropriation without
legal effect. To the contrary, it prevents the Secretary from
reprogramming other funds to pay contract support
costs—thereby protecting funds that Congress envisioned for
other BIA programs, including tribes that choose not to enter ISDA
contracts. But when an agency makes competing contractual
commitments with legally available funds and then fails to pay, it
is the Government that must bear the fiscal consequences, not the
contractor.
B
The dissent attempts to distinguish this case
from
Cherokee Nation and
Ferris on different grounds,
relying on §450j–1(b)’s proviso that “the
Secretary is not required to reduce funding for programs, projects,
or activities serv- ing a tribe to make funds available to another
tribe.” In the dissent’s view, that clause establishes
that each dol- lar allocated by the Secretary reduces the amount of
appropriations legally available to pay other contractors. In
effect, the dissent understands §450j–1(b) to make the
legal availability of appropriations turn on the Secretary’s
expenditures rather than the sum allocated by Congress.
That interpretation, which is inconsistent with
ordinary principles of Government contracting law, is improbable.
We have explained that Congress ordinarily controls the
availability of appropriations; the agency controls whether to make
funds from that appropriation available to pay a contractor. See
Cherokee Nation, 543 U. S., at 642–643. The
agency’s allocation choices do not affect the
Government’s liability in the event of an underpayment. See
id., at 641 (when an “ ‘unrestricted
appropriation is sufficient to fund the contract, the contractor is
entitled to payment
even if the agency has allocated the funds
to another purpose’ ”).[
6] In
Cherokee Nation, we found those
ordinary principles generally applicable to ISDA. See
id.,
at 637–646. We also found no evidence that Congress intended
that “the tribe should bear the risk that a total lump-sum
appropriation (though sufficient to cover its own contracts) will
not prove sufficient to pay
all similar contracts.”
Id., at 638 (citing Brief for Federal Parties 23–25).
The dissent’s reading, by contrast, would impose precisely
that regime. See
post, at 4–5.
The better reading of §450j–1(b)
accords with ordinary Government contracting principles. As we
explained,
su- pra, at 9, the clause underscores the
Secretary’s discre- tion to allocate funds among tribes, but
does not alter the Government’s legal obligation when the
agency fails to pay. That reading gives full effect to the
clause’s text, which addresses the “amount of funds
provided,” and specifies that the Secretary is not required
to reduce funding for one tribe to make “funds
available” to another. 450j–1(b). Indeed, even the
Government acknowledges the clause governs the Secretary’s
discretion to distribute funds. See Brief for Petitioners 52
(pursuant to §450j–1(b), the Secretary was not obligated
to pay tribes’ “contract support costs on a first-come,
first-served basis, but had the authority to distribute the
available money among all tribal contractors in an equitable
fashion”).
At minimum, the fact that we, the court below,
the Government, and the Tribes do not share the dissent’s
reading of §450j–1(b) is strong evidence that its inter-
pretation is not, as it claims, “unambiguous[ly]”
correct.
Post, at 7 (opinion of Roberts, C. J.).
Because ISDA is con- strued in favor of tribes, that conclusion is
fatal to the dissent.
C
The remaining counterarguments are
unpersuasive.
First, the Government suggests that
today’s holding could cause the Secretary to violate the
Anti-Deficiency Act, which prevents federal officers from
“mak[ing] or authoriz[ing] an expenditure or obligation
exceeding an amount available in an appropriation.” 31
U. S. C. §1341(a)(1)(A). But a predecessor version
of that Act was in place when
Ferris and
Dougherty
were decided, see GAO Redbook, pp. 6–9 to 6–10, and the
Government did not prevail there. As
Dougherty explained,
the Anti-Deficiency Act’s requirements “apply to the
official, but they do not affect the rights in this court of the
citizen honestly contracting with the Government.” 18 Ct.
Cl., at 503; see also
Ferris, 27 Ct. Cl., at 546 (“An
appropriation
per se merely imposes limitations upon
the Government’s own agents; . . . but its
insufficiency does not pay the Government’s debts, nor cancel
its obligations”).[
7]
Second, the Government argues that
Congress could not have intended for respondents to recover from
the Judgment Fund, 31 U. S. C. §1304, because that
would allow the Tribes to circumvent Congress’ intent to cap
total expenditures for contract support costs.[
8] That contention is puzzling. Congress expressly
provided in ISDA that tribal contractors were entitled to sue for
“money dam- ages” under the Contract Disputes Act upon
the Government’s failure to pay, 25 U. S. C.
§§450m–1(a), (d), and judgments against the
Government under that Act are payable from the Judgment Fund, 41 U.
S. C. §7108(a).[
9] Indeed,
we cited the Contract Disputes Act, Judgment Fund, and
Anti-Deficiency Act in
Cherokee Nation, explaining that if
the Government commits its appropriations in a manner that leaves
contractual obligations unfulfilled, “the contractor [is]
free to pursue appropriate legal remedies arising because the
Government broke its contractual promise.” 543 U. S., at
642.
Third, the Government invokes cases in
which courts have rejected contractors’ attempts to recover
for amounts beyond the maximum appropriated by Congress for a
particular purpose. See,
e.g., Sutton v.
United
States,
256 U.S.
575 (1921). In
Sutton, for instance, Congress made a
specific line-item appropriation of $23,000 for the completion of a
particular project.
Id., at 577. We held that the sole
contractor engaged to complete that project could not recover more
than that amount for his work.
The
Ferris and
Sutton lines of
cases are distinguishable, however. GAO Redbook, p. 6–18.
“[I]t is settled that contractors paid from a general
appropriation are not barred from recovering for breach of contract
even though the appropriation is exhausted,” but that
“under a specific line-item appropriation, the answer is
different.”
Ibid.[
10] The different results “follo[w] logically from
the old maxim that ignorance of the law is no excuse.”
Ibid. “If Congress appropriates a specific dollar
amount for a particular contract, that amount is specified in the
appropriation act and the contractor is deemed to know it.”
Ibid. This case is far different. Hundreds of tribes entered
into thousands of independent contracts, each for amounts well
within the lump sum appropriated by Congress to pay contract
support costs. Here, where each Tribe’s “contract is
but one activity under a larger appropriation, it is not reasonable
to expect [each] contractor to know how much of that appropriation
remain[ed] available for it at any given time.”
Ibid.;
see also
Ferris, 27 Ct. Cl., at 546.
Finally, the Government argues that
legislative history suggests that Congress approved of the
distribution of available funds on a uniform, pro rata basis. But
“a fundamental principle of appropriations law is that where
Congress merely appropriates lump-sum amounts without statutorily
restricting what can be done with those funds, a clear inference
arises that it does not intend to impose legally binding
restrictions.”
Lincoln, 508 U. S., at 192
(internal quotation marks omitted). “[I]ndicia in committee
reports and other legislative history as to how the funds should or
are expected to be spent do not establish any legal requirements on
the agency.”
Ibid. (internal quotation marks omitted).
An agency’s discretion to spend appropriated funds is cabined
only by the “text of the appropriation,” not by
Congress’ expectations of how the funds will be spent, as
might be reflected by legislative history.
Int’l Union,
UAW, 746 F. 2d, at 860–861. That principle also
reflects the same ideas underlying
Ferris. If a
contractor’s right to payment varied based on a future
court’s uncertain interpretation of legislative history, it
would increase the Government’s cost of contracting. Cf.
Cherokee Nation, 543 U. S., at 644. That long-run
expense would likely far exceed whatever money might be saved in
any individual case.
IV
As the Government points out, the state of
affairs resulting in this case is the product of two congressional
decisions which the BIA has found difficult to reconcile. On the
one hand, Congress obligated the Secretary to accept every
qualifying ISDA contract, which includes a promise of
“full” funding for all contract support costs. On the
other, Congress appropriated insufficient funds to pay in full each
tribal contractor. The Government’s frustration is
understandable, but the dilemma’s resolution is the
responsibility of Congress.
Congress is not short of options. For instance,
it could reduce the Government’s financial obligation by
amending ISDA to remove the statutory mandate compelling the BIA to
enter into self-determination contracts, or by giving the BIA
flexibility to pay less than the full amount of contract support
costs. It could also pass a moratorium on the formation of new
self-determination contracts, as it has done before. See §328,
112Stat. 2681–291 to 292. Or Congress could elect to make
line-item appropriations, allocating funds to cover tribes’
contract support costs on a contractor-by-contractor basis. On the
other hand, Con- gress could appropriate sufficient funds to the
BIA to meet the tribes’ total contract support cost needs.
Indeed, there is some evidence that Congress may do just that. See
H. R. Rep. No. 112–151, p. 42 (2011) (“The
Committee believes that the Bureau should pay all contract support
costs for which it has contractually agreed and directs the Bureau
to include the full cost of the contract support obligations in its
fiscal year 2013 budget submission”).
The desirability of these options is not for us
to say. We make clear only that Congress has ample means at hand to
resolve the situation underlying the Tribes’ suit. Any one of
the options above could also promote transparency about the
Government’s fiscal obligations with respect to ISDA’s
directive that contract support costs be paid in full. For the
period in question, however, it is the Govern- ment—not the
Tribes—that must bear the consequences of Congress’
decision to mandate that the Government enter into binding
contracts for which its appropriation was sufficient to pay any
individual tribal contractor, but “insufficient to pay
all the contracts the agency has made.”
Cherokee
Nation, 543 U. S., at 637.
The judgment of the Court of Appeals is
affirmed.
It is so ordered.