CHEROKEE NATION OF OKLAHOMA et al. v. LEAVITT, SECRETARY OF HEALTH AND HUMAN SERVICES, et al.

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Syllabus
CHEROKEE NATION OF OKLAHOMA et al. v.
LEAVITT, SECRETARY OF HEALTH AND
HUMAN SERVICES, et al.
certiorari to the united states court of appeals for
the tenth circuit
No. 02–1472. Argued November 9, 2004—Decided March 1, 2005*
The Indian Self-Determination and Education Assistance Act (Act) author-
izes the Government and Indian tribes to enter into contracts in which
tribes promise to supply federally funded services that a Government
agency normally would provide, 25 U. S. C. § 450f(a); and requires the
Government to pay, inter alia, a tribe’s “contract support costs,” which
are “reasonable costs” that a federal agency would not have incurred,
but which the tribe would incur in managing the program, § 450j–1(a)(2).
Here, each Tribe agreed to supply health services normally provided by
the Department of Health and Human Services’ Indian Health Service,
and the contracts included an annual funding agreement with a Govern-
ment promise to pay contract support costs. In each instance, the Gov-
ernment refused to pay the full amount promised because Congress had
not appropriated sufficient funds. In the first case, the Tribes submit-
ted administrative payment claims under the Contract Disputes Act of
1978, which the Department of the Interior (the appropriations man-
ager) denied. They then brought a breach-of-contract action. The
District Court found against them, and the Tenth Circuit affirmed. In
the second case, the Cherokee Nation submitted claims to the Depart-
ment of the Interior, which the Board of Contract Appeals ordered paid.
The Federal Circuit affirmed.
Held: The Government is legally bound to pay the “contract support
costs” at issue. Pp. 636–647.
(a) The Government argues that it is legally bound by its promises to
pay the relevant costs only if Congress appropriated sufficient funds,
which the Government contends Congress did not do in this instance.
It does not deny that it promised, but failed, to pay the costs; that, were
these ordinary procurement contracts, its promises to pay would be le-
gally binding; that each year Congress appropriated more than the
amounts at issue; that those appropriations Acts had no relevant statu-
*Together with No. 03–853, Leavitt, Secretary of Health and Human
Services v. Cherokee Nation of Oklahoma, on certiorari to the United
States Court of Appeals for the Federal Circuit.

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tory restrictions; that where Congress makes such appropriations, a
clear inference arises that it does not intend to impose legally binding
restrictions; and that as long as Congress has appropriated sufficient
legally unrestricted funds to pay contracts, as it did here, the Govern-
ment normally cannot back out of a promise to pay on grounds of insuf-
ficient appropriations. Thus, in order to show that its promises were
not legally binding, the Government must show something special about
the promises at issue. It fails to do so here. Pp. 636–638.
(b) The Act does not support the Government’s initial argument that,
because the Act creates a special contract with a unique nature differ-
entiating it from standard Government procurement contracts, a tribe
should bear the risk that a lump-sum appropriation will be insufficient
to pay its contract. In general, the Act’s language runs counter to this
view, strongly suggesting instead that Congress, in respect to a prom-
ise’s binding nature, meant to treat alike promises made under the Act
and ordinary contractual promises. The Act uses “contract” 426 times
to describe the nature of the Government’s promise, and “contract” nor-
mally refers to “a promise . . . for the breach of which the law gives a
remedy, or the performance of which the law . . . recognizes as a duty,”
Restatement (Second) of Contracts § 1. Payment of contract support
costs is described in a provision containing a sample “Contract,” 25
U. S. C. § 450l(c), and contractors are entitled to “money damages” under
the Contract Disputes Act if the Government refuses to pay, § 450m–
1(a). Nor do the Act’s general purposes support any special treatment.
The Government points to the statement that tribes need not spend
funds “in excess of the amount of funds awarded,” § 450l(c), but that
kind of statement often appears in procurement contracts; and the state-
ment that “no [self-determination] contract . . . shall be construed to be
a procurement contract,” § 450b( j), in context, seems designed to relieve
tribes and the Government of technical burdens that may accompany
procurement, not to weaken a contract’s binding nature. Pp. 638–640.
(c) Neither of the phrases in an Act proviso renders the Government’s
promise nonbinding. One phrase—“the Secretary is not required to re-
duce funding for programs, projects, or activities serving a tribe to
make funds available to another tribe,” § 450j–1(b)—did not make the
Government’s promise nonbinding, since the relevant appropriations
contained unrestricted funds sufficient to pay the claims at issue.
When this happens in an ordinary procurement contract case, the Gov-
ernment admits that the contractor is entitled to payment even if the
agency has allocated the funds to another purpose. That the Govern-
ment used the unrestricted funds to satisfy important needs—e. g., the
cost of running the Indian Health Service—does not matter, for there
is nothing special in the Act’s language or the contracts to convince the

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Court that anything but the ordinary rule applies here. The other pro-
viso phrase—which subjects the Government’s provision of funds under
the Act “to the availability of appropriations,” ibid.—also fails to help
the Government. Congress appropriated adequate unrestricted funds
here, and the Government provides no convincing argument for a spe-
cial, rather than ordinary, interpretation of the phrase. Legislative his-
tory shows only that Executive Branch officials wanted discretionary
authority to allocate a lump-sum appropriation too small to pay for all
contracts, not that Congress granted such authority. And other statu-
tory provisions, e. g., § 450j–1(c)(2), to which the Government points, do
not provide sufficient support. Pp. 640–645.
(d) Finally, the Government points to § 314 of the later-enacted 1999
Appropriations Act, which states that amounts “earmarked in commit-
tee reports for the . . . Indian Health Service . . . for payments to tribes
. . . for contract support costs . . . are the total amounts available for
fiscal years 1994 through 1998 for such purposes.” The Court rejects
the Government’s claims that this statute merely clarifies earlier ambig-
uous appropriations language that was wrongly read as unrestricted.
Earlier appropriations statutes were not ambiguous, and restrictive lan-
guage in Committee Reports is not legally binding. Because no other
restrictive language exists, the earlier statutes unambiguously provided
unrestricted lump-sum appropriations. Nor should § 314 be interpreted
to retroactively bar payment of claims arising under 1994 through 1997
contracts. That would raise serious constitutional issues by undoing
binding governmental contractual obligations. Thus, the Court adopts
the interpretation that Congress intended to forbid the Indian Health
Service to use unspent appropriated funds to pay unpaid contract
support costs. So interpreted, § 314 does not bar recovery here.
Pp. 645–647.
No. 02–1472, 311 F. 3d 1054, reversed; No. 03–853, 334 F. 3d 1075, affirmed;
and both cases remanded.
Breyer, J., delivered the opinion of the Court, in which Stevens,
O’Connor, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined.
Scalia, J., filed an opinion concurring in part, post, p. 647. Rehnquist,
C. J., took no part in the decision of the cases.
Lloyd B. Miller argued the cause for petitioners in
No. 02–1472 and respondent in No. 03–853. With him on the
briefs were Arthur Lazarus, Jr., Harry R. Sachse, William
R. Perry, Carter G. Phillips, and Stephen B. Kinnaird.

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Sri Srinivasan argued the cause for the federal parties in
both cases. With him on the brief were Acting Solicitor
General Clement, Assistant Attorney General Keisler, Dep-
uty Solicitor General Kneedler, Barbara C. Biddle, Jeffrica
Jenkins Lee, and Alex M. Azar II.†
Justice Breyer delivered the opinion of the Court.
The United States and two Indian Tribes have entered
into agreements in which the Government promises to pay
certain “contract support costs” that the Tribes incurred
during fiscal years (FYs) 1994 through 1997. The question
before us is whether the Government’s promises are legally
binding. We conclude that they are.
I
The Indian Self-Determination and Education Assistance
Act (Act), 88 Stat. 2203, as amended, 25 U. S. C. § 450 et seq.
(2000 ed. and Supp. II), authorizes the Government and In-
dian tribes to enter into contracts in which the tribes prom-
ise to supply federally funded services, for example tribal
health services, that a Government agency would otherwise
provide. See § 450f(a); see also § 450a(b). The Act specifies
that the Government must pay a tribe’s costs, including ad-
ministrative expenses. See §§ 450j–1(a)(1) and (2). Admin-
istrative expenses include (1) the amount that the agency
would have spent “for the operation of the progra[m]”
had the agency itself managed the program, § 450j–1(a)(1),
†Briefs of amici curiae urging reversal in No. 02–1472 and affirmance
in No. 03–853 were filed for the National Congress of American Indians
by Edward C. DuMont; and for the Tunica-Biloxi Tribe of Louisiana by
Michael P. Gross and C. Bryant Rogers. Ian Heath Gershengorn, Donald
B. Verrilli, Jr., Herbert L. Fenster, and Robin S. Conrad filed a brief for
the Chamber of Commerce of the United States of America et al. as amici
curiae urging affirmance in No. 03–853.
Geoffrey D. Strommer, Joseph H. Webster, and Charles A. Hobbs filed a
brief for the Seldovia Village Tribe as amicus curiae.

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and (2) “contract support costs,” the costs at issue here.
§ 450j–1(a)(2).
The Act defines “contract support costs” as other “reason-
able costs” that a federal agency would not have incurred,
but which nonetheless “a tribal organization” acting “as a
contractor” would incur “to ensure compliance with the
terms of the contract and prudent management.” Ibid.
“[C]ontract support costs” can include indirect administra-
tive costs, such as special auditing or other financial manage-
ment costs, § 450j–1(a)(3)(A)(ii); they can include direct costs,
such as workers’ compensation insurance, § 450j–1(a)(3)(A)(i);
and they can include certain startup costs, § 450j–1(a)(5).
Most contract support costs are indirect costs “generally cal-
culated by applying an ‘indirect cost rate’ to the amount of
funds otherwise payable to the Tribe.” Brief for Federal
Parties 7; see 25 U. S. C. §§ 450b(f)–(g).
The first case before us concerns Shoshone-Paiute con-
tracts for FYs 1996 and 1997 and a Cherokee Nation contract
for 1997. The second case concerns Cherokee Nation con-
tracts for FYs 1994, 1995, and 1996. In each contract, the
Tribe agreed to supply health services that a Government
agency, the Indian Health Service, would otherwise have
provided. See, e. g., App. 88–92 (Shoshone-Paiute Tribal
Health Compact), 173–175 (Compact between the United
States and the Cherokee Nation). Each contract included
an “Annual Funding Agreement” with a Government prom-
ise to pay contract support costs. See, e. g., id., at 104–128,
253–264. In each instance, the Government refused to pay
the full amount promised because, the Government says,
Congress did not appropriate sufficient funds.
Both cases began as administrative proceedings. In the
first case, the Tribes submitted claims seeking payment
under the Contract Disputes Act of 1978, 92 Stat. 2383, 41
U. S. C. § 601 et seq., and the Act, 25 U. S. C. §§ 450m–1(a),
(d), 458cc(h), from the Department of the Interior (which
manages the relevant appropriations). See, e. g., App. 150–

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151, 201–203. The Department denied their claim; they then
brought a breach-of-contract action in the Federal District
Court for the Eastern District of Oklahoma seeking $3.5 mil-
lion (Shoshone-Paiute) and $3.4 million (Cherokee Nation).
See Cherokee Nation of Okla. v. Thompson, 311 F. 3d 1054,
1059 (CA10 2002). The District Court found against the
Tribes. Cherokee Nation of Okla. v. United States, 190
F. Supp. 2d 1248 (ED Okla. 2001). And the Court of Appeals
for the Tenth Circuit affirmed. 311 F. 3d 1054 (2002).
In the second case, the Cherokee Nation submitted claims
to the Department of the Interior. See App. 229–230. A
contracting officer denied the claims; the Board of Contract
Appeals reversed this ruling, ordering the Government to
pay $8.5 million in damages. Cherokee Nation of Okla.,
1999–2 BCA ¶ 30,462, p. 150488; App. to Pet. for Cert. in
No. 03–853, pp. 38a–40a. The Government sought judicial
review in the Court of Appeals for the Federal Circuit. The
Federal Circuit affirmed the Board’s determination for the
Tribe. Thompson v. Cherokee Nation of Okla., 334 F. 3d
1075 (2003).
In light of the identical nature of the claims in the two
cases and the opposite results that the two Courts of Appeals
have reached, we granted certiorari. We now affirm the
Federal Circuit’s judgment in favor of the Cherokee Nation,
and we reverse the Tenth Circuit’s judgment in favor of the
Government.
II
The Government does not deny that it promised to pay the
relevant contract support costs. Nor does it deny that it
failed to pay. Its sole defense consists of the argument that
it is legally bound by its promises if, and only if, Congress
appropriated sufficient funds, and that, in this instance, Con-
gress failed to do so.
The Government in effect concedes yet more. It does not
deny that, were these contracts ordinary procurement con-
tracts, its promises to pay would be legally binding. The

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Tribes point out that each year Congress appropriated far
more than the amounts here at issue (between $1.277
billion and $1.419 billion) for the Indian Health Service
“to carry out,” inter alia, “the Indian Self-Determination
Act.” See 107 Stat. 1408 (1993); 108 Stat. 2527–2528 (1994);
110 Stat. 1321–189 (1996); id., at 3009–212 to 3009–213.
These appropriations Acts contained no relevant statutory
restriction.
The Tribes (and their amici) add, first, that this Court has
said that
“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 in-
tend to impose legally binding restrictions, and indicia
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.” Lin-
coln v. Vigil, 508 U. S. 182, 192 (1993) (internal quotation
marks omitted).
See also International Union, United Auto., Aerospace &
Agricultural Implement Workers of America v. Donovan,
746 F. 2d 855, 860–861 (CADC 1984) (Scalia, J.); Blackhawk
Heating & Plumbing Co. v. United States, 224 Ct. Cl. 111,
135, and n. 9, 622 F. 2d 539, 552, and n. 9 (1980).
The Tribes and their amici add, second, that as long as
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 “insuffi-
cient 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 in-
sufficient to pay all the contracts the agency has made.
See Ferris v. United States, 27 Ct. Cl. 542, 546 (1892)
(“A contractor who is one of several persons to be paid out

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of an appropriation is not chargeable with knowledge of its
administration, nor can his legal rights be affected or im-
paired by its maladministration or by its diversion, whether
legal or illegal, to other objects”); see also Blackhawk, supra,
at 135, and n. 9, 622 F. 2d, at 552, and n. 9.
As we have said, the Government denies none of this.
Thus, if it is nonetheless to demonstrate that its promises
were not legally binding, it must show something special
about the promises here at issue. That is precisely what the
Government here tries, but fails, to do.
A
The Government initially argues that the Act creates a
special kind of “self-determination contrac[t]” with a “unique,
government-to-government nature” that differentiates it
from “standard government procurement contracts.” Brief
for Federal Parties 4. Because a tribe does not bargain with
the Government at arm’s length, id., at 24, the law should
charge it with knowledge that the Government has entered
into other, similar contracts with other tribes; 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 23–25. Because
such a tribe has elected to “ste[p] into the shoes of a federal
agency,” id., at 25, the law should treat it like an agency; and
an agency enjoys no legal entitlement to receive promised
amounts from Congress, id., at 24–25. Rather, a tribe
should receive only the portion of the total lump-sum appro-
priation allocated to it, not the entire sum to which a private
contractor might well be entitled. Id., at 24.
The Government finds support for this special treatment
of its promises made pursuant to the Act by pointing to a
statutory provision stating that “ ‘no [self-determination]
contract . . . shall be construed to be a procurement con-
tract,’ ” id., at 23 (quoting 25 U. S. C. § 450b( j); alterations in
original). It finds supplementary support in another provi-

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sion that says that a tribe need not deliver services “ ‘in
excess of the amount of funds awarded,’ ” Brief for Federal
Parties 24 (quoting 25 U. S. C. § 450l(c); citing § 458aaa–7(k)).
These statutory provisions, in our view, fall well short of
providing the support the Government needs. In general,
the Act’s language runs counter to the Government’s view.
That language strongly suggests that Congress, in respect to
the binding nature of a promise, meant to treat alike prom-
ises made under the Act and ordinary contractual promises
(say, those made in procurement contracts). The Act, for
example, uses the word “contract” 426 times to describe the
nature of the Government’s promise; and the word “contract”
normally refers to “a promise or a set of promises for the
breach of which the law gives a remedy, or the performance
of which the law in some way recognizes as a duty,” Restate-
ment (Second) of Contracts § 1 (1979). The Act also de-
scribes payment of contract support costs in a provision set-
ting forth a sample “Contract.” 25 U. S. C. § 450l(c) (Model
Agreement §§ 1(a)(1), (b)(4)). Further, the Act says that if
the Government refuses to pay, then contractors are entitled
to “money damages” in accordance with the Contract Dis-
putes Act. 25 U. S. C. § 450m–1(a); see also §§ 450m–1(d),
458cc(h).
Neither do the Act’s general purposes support any spe-
cial treatment. The Act seeks greater tribal self-reliance
brought about through more “effective and meaningful par-
ticipation by the Indian people” in, and less “Federal domina-
tion” of, “programs for, and services to, Indians.” § 450a(b).
The Act also reflects a congressional concern with Govern-
ment’s past failure adequately to reimburse tribes’ indirect
administrative costs and a congressional decision to require
payment of those costs in the future. See, e. g., § 450j–1(g);
see also §§ 450j–1(a), (d)(2).
The specific statutory language to which the Government
points—stating that tribes need not spend funds “in excess
of the amount of funds awarded,” § 450l(c) (Model Agreement

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§ 1(b)(5))—does not help the Government. Cf. Brief for Fed-
eral Parties 18. This kind of statement often appears in or-
dinary procurement contracts. See, e. g., 48 CFR § 52.232–
20(d)(2) (2004) (sample “Limitation of Cost” clause); see
generally W. Keyes, Government Contracts Under the Fed-
eral Acquisition Regulation § 32.38, p. 724 (3d ed. 2003). Nor
can the Government find adequate support in the statute’s
statement that “no [self-determination] contract . . . shall
be construed to be a procurement contract.” 25 U. S. C.
§ 450b( j). In context, that statement seems designed to
relieve tribes and the Government of the technical bur-
dens that often accompany procurement, not to weaken a
contract’s binding nature. Cf. 41 CFR § 3–4.6001 (1976)
(applying procurement rules to tribal contracts); S. Rep.
No. 100–274, p. 7 (1987) (noting that application of procure-
ment rules to contracts with tribes “resulted in excessive
paperwork and unduly burdensome reporting require-
ments”); id., at 18–19 (describing decision not to apply pro-
curement rules to tribal contracts as intended to “greatly
reduc[e]” the federal bureaucracy associated with them).
Finally, we have found no indication that Congress believed
or accepted the Government’s current claim that, because of
mutual self-awareness among tribal contractors, tribes, not
the Government, should bear the risk that an unrestricted
lump-sum appropriation would prove insufficient to pay all
contractors. Compare Brief for Federal Parties 23–24 with
Ferris, 27 Ct. Cl., at 546.
B
The Government next points to an Act proviso, which
states:
“Notwithstanding any other provision in this subchap-
ter, the provision of funds under this subchapter is [1]
subject to the availability of appropriations and the
Secretary [2] is not required to reduce funding for pro-
grams, projects, or activities serving a tribe to make

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funds available to another tribe or tribal organization
under this subchapter.” 25 U. S. C. § 450j–1(b) (empha-
sis and bracketed numbers added).
The Government believes that the two italicized phrases,
taken separately or together, render its promises
nonbinding.
1
We begin with phrase [2]. This phrase, says the Govern-
ment, makes nonbinding a promise to pay one tribe’s costs
where doing so would require funds that the Government
would otherwise devote to “programs, projects, or activities
serving . . . another tribe,” ibid. See Brief for Federal Par-
ties 27–36. This argument is inadequate, however, for at the
least it runs up against the fact—found by the Federal Cir-
cuit, see 334 F. 3d, at 1093–1094, and nowhere here denied—
that the relevant congressional appropriations contained
other unrestricted funds, small in amount but sufficient to
pay the claims at issue. And as we have said, supra, at 636–
638, the Government itself tells us that, in the case of ordi-
nary contracts, say, procurement contracts,
“if the amount of an unrestricted appropriation is suffi-
cient 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 ex-
haust the funds.” Brief for Federal Parties 23 (empha-
sis added).
See, e. g., Lincoln, 508 U. S., at 192; Blackhawk, 224 Ct. Cl.,
at 135, and n. 9, 622 F. 2d, at 552, and n. 9; Ferris, supra,
at 546.
The Government argues that these other funds, though le-
gally unrestricted (as far as the appropriations statutes’ lan-
guage is concerned), were nonetheless unavailable to pay
“contract support costs” because the Government had to use
those funds to satisfy a critically important need, namely, to
pay the costs of “inherent federal functions,” such as the cost

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of running the Indian Health Service’s central Washington
office. Brief for Federal Parties 9–10, 27–34. This argu-
ment cannot help the Government, however, for it amounts
to no more than a claim that the agency has allocated the
funds to another purpose, albeit potentially a very important
purpose. If an important alternative need for funds cannot
rescue the Government from the binding effect of its prom-
ises where ordinary procurement contracts are at issue, it
cannot rescue the Government here, for we can find nothing
special in the statute’s language or in the contracts.
The Government’s best effort to find something special in
the statutory language is unpersuasive. The Government
points to language that forbids the Government to enter into
a contract with a tribe in which it promises to pay the tribe
for performing federal functions. See 25 U. S. C. § 458aaa–
6(c)(1)(A)(ii); see also §§ 450f(a)(2)(E), 450j–1(a)(1), 450l(c)
(Model Agreement § 1(a)(2)). Language of this kind, how-
ever, which forbids the Government to contract for certain
kinds of services, says nothing about the source of funds used
to pay for the supply of contractually legitimate activities
(and that is what is at issue here).
We recognize that agencies may sometimes find that they
must spend unrestricted appropriated funds to satisfy needs
they believe more important than fulfilling a contractual obli-
gation. But the law normally expects the Government to
avoid such situations, for example, by refraining from mak-
ing less essential contractual commitments; or by asking
Congress in advance to protect funds needed for more essen-
tial purposes with statutory earmarks; or by seeking added
funding from Congress; or, if necessary, by using unre-
stricted funds for the more essential purpose while leaving
the contractor free to pursue appropriate legal remedies
arising because the Government broke its contractual prom-
ise. See New York Airways, Inc. v. United States, 177 Ct.
Cl. 800, 808–811, 369 F. 2d 743, 747–748 (1966) (per curiam);
31 U. S. C. §§ 1341(a)(1)(A) and (B) (Anti-Deficiency Act); 41

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U. S. C. § 601 et seq. (Contract Disputes Act); 31 U. S. C.
§ 1304 (Judgment Fund); see generally 2 General Accounting
Office, Principles of Federal Appropriations Law 6–17 to
6–19 (2d ed. 1992) (hereinafter GAO Redbook). The Gov-
ernment, without denying that this is so as a general matter
of procurement law, says nothing to convince us that a differ-
ent legal rule should apply here.
2
Phrase [1] of the proviso says that the Government’s provi-
sion of funds under the Act is “subject to the availability
of appropriations.” 25 U. S. C. § 450j–1(b). This language
does not help the Government either. Language of this
kind is often used with respect to Government contracts.
See, e. g., 22 U. S. C. § 2716(a)(1); 42 U. S. C. §§ 6249(b)(4),
12206(d)(1). This kind of language normally makes clear
that an agency and a contracting party can negotiate a con-
tract prior to the beginning of a fiscal year but that the con-
tract will not become binding unless and until Congress
appropriates funds for that year. See, e. g., Blackhawk,
supra, at 133–138, 622 F. 2d, at 551–553; see generally 1 GAO
Redbook 4–6 (3d ed. 2004); 2 id., at 6–6 to 6–8, 6–17 to 6–19
(2d ed. 1992). It also makes clear that a Government con-
tracting officer lacks any special statutory authority needed
to bind the Government without regard to the availability
of appropriations. See Ferris, 27 Ct. Cl., at 546; New York
Airways, supra, at 809–813, 369 F. 2d, at 748–749; Dougherty
v. United States, 18 Ct. Cl. 496, 503 (1883); 31 U. S. C.
§§ 1341(a)(1)(A) and (B) (providing that without some such
special authority, a contracting officer cannot bind the Gov-
ernment in the absence of an appropriation). Since Con-
gress appropriated adequate unrestricted funds here, phrase
[1], if interpreted as ordinarily understood, would not help
the Government.
The Government again argues for a special interpretation.
It says the language amounts to “an affirmative grant of au-

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644 CHEROKEE NATION OF OKLA. v. LEAVITT
Opinion of the Court
thority to the Secretary to adjust funding levels based on
appropriations.” Brief for Federal Parties 41 (emphasis in
original). In so arguing, the Government in effect claims
(on the basis of this language) to have the legal right to disre-
gard its contractual promises if, for example, it reasonably
finds other, more important uses for an otherwise adequate
lump-sum appropriation.
In our view, however, the Government must again shoul-
der the burden of explaining why, in the context of Govern-
ment contracts, we should not give this kind of statutory
language its ordinary contract-related interpretation, at
least in the absence of a showing that Congress meant the
contrary. We believe it important to provide a uniform in-
terpretation of similar language used in comparable statutes,
lest legal uncertainty undermine contractors’ confidence that
they will be paid, and in turn increase the cost to the Govern-
ment of purchasing goods and services. See, e. g., Franco-
nia Associates v. United States, 536 U. S. 129, 142 (2002);
United States v. Winstar Corp., 518 U. S. 839, 884–885, and
n. 29 (1996) (plurality opinion); id., at 913 (Breyer, J., con-
curring); Lynch v. United States, 292 U. S. 571, 580 (1934).
The Government, in our view, has provided no convincing
argument for a special, rather than ordinary, interpretation
here.
The Government refers to legislative history, see Brief for
Federal Parties 41–42 (citing, e. g., S. Rep. No. 100–274, at
48, 57), but that history shows only that Executive Branch
officials would have liked to exercise discretionary authority
to allocate a lump-sum appropriation too small to pay for all
the contracts that the Government had entered into; the his-
tory does not show that Congress granted such authority.
Nor can we find sufficient support in the other statutory pro-
visions to which the Government points. See 25 U. S. C.
§ 450j–1(c)(2) (requiring the Government to report underpay-
ments of promised contract support costs); 107 Stat. 1408
(Appropriations Act for FY 1994) (providing that $7.5 million

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645 Cite as: 543 U. S. 631 (2005)
Opinion of the Court
for contract support costs in “initial or expanded” contracts
“shall remain available” until expended); 108 Stat. 2528
(same for FY 1995); 110 Stat. 1321–189 (same for FY 1996);
id., at 3009–213 (same for FY 1997). We cannot adopt the
Government’s special interpretation of phrase [1] of the
proviso.
C
Finally, the Government points to a later enacted statute,
§ 314 of the Department of the Interior and Related Agencies
Appropriations Act, 1999, which says:
“Notwithstanding any other provision of law [the]
amounts appropriated to or earmarked in committee re-
ports for the . . . Indian Health Service . . . for payments
to tribes . . . for contract support costs . . . are the total
amounts available for fiscal years 1994 through 1998 for
such purposes.” 112 Stat. 2681–288 (emphasis added).
See Brief for Federal Parties 45–50. The Government adds
that congressional Committee Reports “earmarked,” i. e., re-
stricted, appropriations available to pay “contract support
costs” in each of FYs 1994 through 1997. Id., at 48. And
those amounts have long since been spent. See id., at 12.
Since those amounts “are the total amounts available for”
payment of “contract support costs,” the Government says,
it is unlawful to pay the Tribes’ claims. Id., at 45–48.
The language in question is open to the interpretation that
it retroactively bars payment of claims arising under 1994
through 1997 contracts. It is also open to another interpre-
tation. Just prior to Congress’ enactment of § 314, the Inte-
rior Department’s Board of Contract Appeals considered a
case similar to the present ones and held that the Govern-
ment was legally bound to pay amounts it had promised in
similar contracts. Alamo Navajo School Bd., Inc. and Mic-
cosukee Corp., 1998–2 BCA ¶ 29,831, p. 147681 (1997), and
¶ 29,832, p. 147699 (1998). The Indian Health Service con-
temporaneously issued a draft document that suggested the

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646 CHEROKEE NATION OF OKLA. v. LEAVITT
Opinion of the Court
use of unspent funds appropriated in prior years to pay un-
paid “contract support costs.” App. 206–209. Indeed, the
document referred to use of unobligated funds from years
including 1994 through 1997 to pay “contract support cost”
debts. Id., at 206–207. Section 314’s language may be read
as simply forbidding the Service to use those leftover funds
for that purpose.
On the basis of language alone we would find either inter-
pretation reasonable. But there are other considerations.
The first interpretation would undo a binding governmental
contractual promise. A statute that retroactively repudi-
ates the Government’s contractual obligation may violate the
Constitution. See, e. g., Winstar, supra, at 875–876 (plural-
ity opinion); Perry v. United States, 294 U. S. 330, 350–351
(1935); Lynch, supra, at 579–580; United States v. Klein,
13 Wall. 128, 144–147 (1872); see also, e. g., Winstar, supra,
at 884–885, and n. 29 (plurality opinion) (describing practi-
cal disadvantages flowing from governmental repudiation);
Lynch, supra, at 580 (same). And such an interpretation
is disfavored. See Clark v. Martinez, ante, at 380–382;
Zadvydas v. Davis, 533 U. S. 678, 689 (2001); Edward J. De-
Bartolo Corp. v. Florida Gulf Coast Building & Constr.
Trades Council, 485 U. S. 568, 575 (1988). This consider-
ation tips the balance against the retroactive interpretation.
The Government, itself not relying on either interpreta-
tion, offers us a third. It says that the statute simply clari-
fies earlier ambiguous appropriations language that was
wrongly read as unrestricted. Brief for Federal Parties 48
(citing Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 380–
381 (1969)). The earlier appropriations statutes, however,
were not ambiguous. The relevant case law makes clear
that restrictive language contained in Committee Reports
is not legally binding. See, e. g., Lincoln, 508 U. S., at 192;
International Union, 746 F. 2d, at 860–861; Blackhawk, 224
Ct. Cl., at 135, and n. 9, 622 F. 2d, at 552, and n. 9. No other
restrictive language exists. The earlier appropriations stat-

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647 Cite as: 543 U. S. 631 (2005)
Scalia, J., concurring in part
utes unambiguously provided unrestricted lump-sum appro-
priations. We therefore cannot accept the Government’s in-
terpretation of § 314.
Hence we, like the Federal Circuit, are left with the second
interpretation, which we adopt, concluding that Congress in-
tended it in the circumstances. See Zadvydas, supra, at
689; cf. 334 F. 3d, at 1092. So interpreted, the provision does
not bar recovery here.
For these reasons, we affirm the judgment of the Federal
Circuit; we reverse the judgment of the Tenth Circuit; and
we remand the cases for further proceedings consistent with
this opinion.
It is so ordered.
The Chief Justice took no part in the decision of these
cases.
Justice Scalia, concurring in part.
I join the Court’s opinion except its reliance, ante, at 640,
on a Senate Committee Report to establish the meaning of
the statute at issue here. That source at most indicates the
intent of one Committee of one Chamber of Congress—and
realistically, probably not even that, since there is no re-
quirement that Committee members vote on, and small prob-
ability that they even read, the entire text of a staff-
generated report. It is a legal fiction to say that this
expresses the intent of the United States Congress. And it
is in any event not the inadequately expressed intent of the
Congress, but the meaning of what it enacted, that we should
be looking for. The only virtue of this cited source (and its
entire allure) is that it says precisely what the Court wants.

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Reporter’s Note
The next page is purposely numbered 801. The numbers between 647
and 801 were intentionally omitted, in order to make it possible to publish
the orders with permanent page numbers, thus making the official cita-
tions available upon publication of the preliminary prints of the United
States Reports.