(Slip Opinion) OCTOBER TERM, 2011 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

SALAZAR, SECRETARY OF THE INTERIOR, ET AL. v. 

RAMAH NAVAJO CHAPTER ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE TENTH CIRCUIT 

No. 11–551. Argued April 18, 2012—Decided June 18, 2012 

The Indian Self-Determination and Education Assistance Act (ISDA)

directs the Secretary of the Interior to enter into contracts with willing tribes under which they will provide services such as education

and law enforcement that the Federal Government otherwise would 

have provided. It requires the Secretary to contract to pay the “full 

amount” of “contract support costs,” 45 U. S. C. §§450j–1(a)(2), (g),

subject to the availability of appropriations, §450j–1(b). In the event 

of a contractual breach, tribal contractors are entitled to seek money 

damages under the Contract Disputes Act. 

In Fiscal Years (FYs) 1994 to 2001, respondent Tribes contracted 

with the Secretary to provide services. During each of those FYs,

Congress appropriated sufficient funds to pay any individual tribal

contractor’s contract support costs in full but did not appropriate 

enough to pay all tribal contractors collectively. Unable to pay every

contractor in full, the Secretary paid the Tribes on a uniform, 

pro rata basis. Respondents sued under the Contract Disputes Act 

for breach of contract. The District Court granted the Government 

summary judgment. The Tenth Circuit reversed, finding the Government liable to each contractor for the full contract amount. 

Held: The Government must pay each Tribe’s contract support costs in

full. Pp. 5−18. 

(a) In Cherokee Nation of Okla. v. Leavitt, 543 U. S. 631, this Court 

considered the Government’s promise to pay contract support costs in

ISDA self-determination contracts that made the Government’s obligation “subject to the availability of appropriations,” id., at 634−637. 

The Government contended that Congress appropriated inadequate

funds to fulfill its contractual obligations to the Tribes, while meeting 
 

 

 

2 SALAZAR v. RAMAH NAVAJO CHAPTER 

Syllabus 

the agency’s competing fiscal priorities. Because Congress appropriated sufficient legally unrestricted funds to pay the contracts, however, the Court held that the Government was obligated to pay those

costs in full absent “something special about the promises,” id., at 

637–638. 

That conclusion 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, 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. That is so 

“even if an agency’s total lump-sum appropriation is insufficient to

pay all” of its contracts. Cherokee Nation, 543 U. S., at 637. This 

principle safeguards both the expectations of Government contractors

and the long-term fiscal interests of the United States. Contractors 

need not keep track of agencies’ shifting priorities and competing obligations; rather, they may trust that the Government will honor its

contractual promises. And the rule furthers “the Government’s own 

long-run interest as a reliable contracting partner in the myriad

workaday transaction of its agencies.” United States v. Winstar 

Corp., 518 U. S. 839, 883. Pp. 5–8.

(b) The principles underlying Cherokee Nation and Ferris control 

here. Once “Congress has appropriated sufficient legally unrestricted

funds to pay the contracts at issue, the Government normally cannot 

back out of a promise 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. That condition is satisfied here, because Congress made sufficient funds available to pay any individual

contractor in full. Pp. 8−10. 

(c) The Government attempts to distinguish Ferris and Cherokee 

Nation on the ground that they involved unrestricted, lump-sum appropriations, while Congress here appropriated “not to exceed” a certain amount for contract support costs. The effect of the appropriations in each case, however, was identical: the agency remained free

to allocate funds among multiple contractors, so long as the contracts

served the purpose Congress identified. The “not to exceed” language

still has legal effect; it prevents the Secretary from reprogramming

other funds to pay contract support costs, thereby protecting funds

that Congress envisioned for other Bureau of Indian Affairs programs.

Section 450j–1(b), which specifies that the Secretary is not required 
 

 

 

Cite as: 567 U. S. ____ (2012) 3 

Syllabus 

to reduce funding for one tribe’s programs to make funds available to

another tribe, does not warrant a different result. Consistent with 

ordinary Government contracting principles, that language merely

underscores the Secretary’s discretion to allocate funds among tribes.

It does not alter the Government’s legal obligation when the Secretary fails to pay.

The Government’s remaining counterarguments are unpersuasive. 

First, it suggests that the Secretary could violate the Anti-Deficiency 

Act, which prevents federal officers from making or authorizing an 

expenditure or obligation exceeding an amount available in an appropriation. That Act applies only to government officials, however, 

and does not affect the rights of citizens contracting with the Government. Second, the Government argues that permitting respondents to recover from the Judgment Fund would circumvent Congress’ 

intent to cap total expenditures for contract support costs. But ISDA 

expressly provides that tribal contractors may sue for “money damages” under the Contract Disputes Act, and any ensuing judgments

are payable from the Judgment Fund. See Cherokee Nation, 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. However, Sutton involved a specific line-item appropriation for an amount beyond which 

the sole contractor could not recover. This case involves several contractors, each of whom contracted within the lump-sum amount Congress appropriated for all contractors. Unlike the sole contractor in 

Sutton, they cannot reasonably be expected to know how much remained available of Congress’ lump-sum appropriation. Finally, the 

Government claims that legislative history suggests that Congress 

approved of pro rata distribution, but “indicia in committee reports

and other legislative history as to how funds should or are expected

to be spent do not establish any legal requirement on the agency.” 

Lincoln v. Vigil, 508 U. S. 182, 192. Pp. 11−17. 

(d) This case is the product of two decisions in some tension: Congress required the Secretary to accept every qualifying ISDA contract, promising “full” funding for all contract support costs, but then

appropriated insufficient funds to pay in full each tribal contractor.

Responsibility for the resolution of that situation, however, is committed to Congress. Pp. 17−18. 

644 F. 3d 1054, affirmed. 

SOTOMAYOR, J., delivered the opinion of the Court, in which SCALIA, 

KENNEDY, THOMAS, and KAGAN, JJ., joined. ROBERTS, C. J., filed a dissenting opinion, in which GINSBURG, BREYER, and ALITO, JJ., joined. 
 

 

_________________ 

_________________ 

Cite as: 567 U. S. ____ (2012) 1 

Opinion of the Court 

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 
 

2 SALAZAR v. RAMAH NAVAJO CHAPTER 

Opinion of the Court 

“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 equivalent to those that the Secretary “would have otherwise provided for his direct operation of the programs.” 

§106(h), 88 Stat. 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 selfdetermination 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 di-

—————— 

1As defined by ISDA, contract support costs “shall consist of an 

amount for the reasonable costs for activities which must be carried on 

by a tribal organization as a contractor to ensure compliance with the

terms of the contract and prudent management, but which . . . (A)

normally are not carried on by the respective Secretary in his direct 

operation of the program; or (B) are provided by the Secretary in 

support of the contracted program from resources other than those 

under contract.” §450j–1(a)(2). Such costs include overhead administrative costs, as well as expenses such as federally mandated audits

and liability insurance. See Cherokee Nation of Okla., 543 U. S., at 635. 
 

 

 

 

Cite as: 567 U. S. ____ (2012) 3 

Opinion of the Court 

rected that each tribal self-determination contract “shall 

. . . contain, or incorporate [it] by reference.” §450l(a)(1).

The model contract specifies that “‘[s]ubject to the availability of appropriations, the Secretary shall make available to the Contractor the total amount specified in the 

annual funding agreement’” between the Secretary and 

the tribe. §450l(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 . . . .’” §450l(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 damages” 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, 113 Stat. 1501A–148. Of that sum, Congress provided that “not to exceed [a particular amount] shall be

available for payments to tribes and tribal organizations 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. 
 

4 SALAZAR v. RAMAH NAVAJO CHAPTER 

Opinion of the Court 

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 
Cite as: 567 U. S. ____ (2012) 5 

Opinion of the Court 

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 considered the Government’s promise to pay contract support 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 ShoshonePaiute 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 

—————— 

2Compare 644 F. 3d 1054 (case below), with Arctic Slope Native 

Assn., Ltd. v. Sebelius, 629 F. 3d 1296 (CA Fed. 2010) (no liability to

pay total contract support costs beyond cap in appropriations Act). 
 

 

6 SALAZAR v. RAMAH NAVAJO CHAPTER 

Opinion of the Court 

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 

—————— 

3 In Ferris, for instance, Congress appropriated $45,000 for the im-
 

Cite as: 567 U. S. ____ (2012) 7 

Opinion of the Court 

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 

—————— 

provement of the Delaware River below Bridesburg, Pennsylvania. Act 

of Mar. 3, 1879, ch. 181, 20 Stat. 364. The Government contracted with 

Ferris for $37,000 to dredge the river. Halfway through Ferris’ performance of his contract, the United States Army Corps of Engineers ran 

out of money to pay Ferris, having used $17,000 of the appropriation to

pay for other improvements. Nonetheless, the Court of Claims found 

that Ferris could recover for the balance of his contract. As the court 

explained, the appropriation “merely impose[d] limitations upon the

Government’s own agents; . . . its insufficiency [did] not pay the Government’s debts, nor cancel its obligations, nor defeat the rights of 

other parties.” 27 Ct. Cl., at 546; see also Dougherty, 18 Ct. Cl., at 503 

(rejecting Government’s argument that a contractor could not recover 

upon similar facts because the “appropriation had, at the time of the

purchase, been covered by other contracts”). 
 

 

8 SALAZAR v. RAMAH NAVAJO CHAPTER 

Opinion of the Court 

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 longrun interest as a reliable contracting partner in the myriad 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-
 

Cite as: 567 U. S. ____ (2012) 9 

Opinion of the Court 

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 organization 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 

—————— 

4 Indeed, the Indian Health Service once allocated its appropriations

for new ISDA contracts on a first-come, first-serve basis. See Dept. of

Health and Human Services, Indian Self-Determination Memorandum 

No. 92–2, p. 4 (Feb. 27, 1992). 
 

 

10 SALAZAR v. RAMAH NAVAJO CHAPTER 

Opinion of the Court 

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. . . .’” §450l(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. 

—————— 

5The Government’s reliance on this statutory language is particularly 

curious because it suggests it is superfluous. See Brief for Petitioners 

30–31 (it is “unnecessary” to specify that contracts are “subject to the

availability of appropriations” (internal quotation marks omitted)); 

see also Reply Brief for Petitioners 7 (“[A]ll government contracts are 

contingent upon the appropriations provided by Congress”). 
 

Cite as: 567 U. S. ____ (2012) 11 

Opinion of the Court 

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 backdrop 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.” 20 

Stat. 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., 108 Stat. 2527–2528 (“For 

expenses necessary to carry out . . . ISDA [and certain 

other enumerated Acts], $1,713,052,000”). There is no basis, therefore, for distinguishing the class of appropriation 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 
 

 

 

12 SALAZAR v. RAMAH NAVAJO CHAPTER 

Opinion of the Court 

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 serving a tribe to make funds available to another tribe.” In 

the dissent’s view, that clause establishes that each dollar 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 

—————— 

6The dissent’s view notwithstanding, it is beyond question that Congress appropriated sufficient unrestricted funds to pay any contractor

in full. The dissent’s real argument is that §450j–1(b) reverses the 

applicability of the Ferris rule to ISDA, so that the Secretary’s allocation of funds to one contractor reduces the legal availability of funds to 

others. See post, at 4 (opinion of ROBERTS, C. J.) (“that the Secretary 
 

 

Cite as: 567 U. S. ____ (2012) 13 

Opinion of the Court 

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, supra, at 9, the clause underscores the Secretary’s discretion 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 

—————— 

could have allocated the funds to [a] tribe is irrelevant. What matters 

is what the Secretary does, and once he allocates the funds to one tribe,

they are not available to another”). We are not persuaded that §450j–

1(b) was intended to enact that radical departure from ordinary Government contracting principles. Indeed, Congress has spoken clearly

and directly when limiting the Government’s total contractual liability

to an amount appropriated in similar schemes; that it did not do so 

here further counsels against the dissent’s reading. See, e.g., 25 

U. S. C. §2008(j)(2) (“[i]f the total amount of funds necessary to provide 

grants to tribes . . . for a fiscal year exceeds the amount of funds appropriated . . . , the Secretary shall reduce the amount of each grant

[pro rata]”). 
 

 

 

 

 

14 SALAZAR v. RAMAH NAVAJO CHAPTER 

Opinion of the Court 

Government, and the Tribes do not share the dissent’s 

reading of §450j–1(b) is strong evidence that its interpretation is not, as it claims, “unambiguous[ly]” correct. 

Post, at 7 (opinion of ROBERTS, C. J.). Because ISDA is construed 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 

—————— 

7We have some doubt whether a Government employee would violate

the Anti-Deficiency Act by obeying an express statutory command to

enter a contract, as was the case here. But we need not decide the 

question, for this case concerns only the contractual rights of tribal

contractors, not the consequences of entering into such contracts for 

agency employees. 
 

Cite as: 567 U. S. ____ (2012) 15 

Opinion of the Court 

expenditures for contract support costs.8 That contention 

is puzzling. Congress expressly provided in ISDA that

tribal contractors were entitled to sue for “money damages” 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, 

—————— 

8The Judgment Fund is a “permanent, indefinite appropriation” enacted by Congress to pay final judgments against the United States

when, inter alia, “[p]ayment may not legally be made from any other

source of funds.” 31 CFR §256.1 (2011). 9For that reason, the Government’s reliance on Office of Personnel 

Management v. Richmond, 496 U. S. 414 (1990), is misplaced. In 

Richmond, we held that the Appropriations Clause does not permit

plaintiffs to recover money for Government-caused injuries for which

Congress “appropriated no money.” Id., at 424. Richmond, however, 

indicated that the Appropriations Clause is no bar to recovery in a case

like this one, in which “the express terms of a specific statute” establish 

“a substantive right to compensation” from the Judgment Fund. Id., 

at 432. 
 

 

 

16 SALAZAR v. RAMAH NAVAJO CHAPTER 

Opinion of the Court 

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 commit-

—————— 

10Of course, “[t]he terms ‘lump-sum’ and ‘line-item’ are relative concepts.” GAO Redbook, p. 6–165. For example, an appropriation for

building two ships “could be viewed as a line-item appropriation in 

relation to the broader ‘Shipbuilding and Conversion’ category, but it

was also a lump-sum appropriation in relation to the two specific 

vessels included.” Ibid. So long as a contractor does not seek payment 

beyond the amount Congress made legally available for a given purpose, “[t]his factual distinction does not affect the legal principle.” Ibid. 

See also In re Newport News Shipbuilding & Dry Dock Co., 55 Comp.

Gen. 812 (1976). 
Cite as: 567 U. S. ____ (2012) 17 

Opinion of the Court 

tee 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, 112 Stat. 2681–291 to 292. Or 

Congress could elect to make line-item appropriations, 
 

 

 

18 SALAZAR v. RAMAH NAVAJO CHAPTER 

Opinion of the Court 

allocating funds to cover tribes’ contract support costs on 

a contractor-by-contractor basis. On the other hand, Congress 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 Government—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. 
 

_________________ 

_________________ 

 

 

Cite as: 567 U. S. ____ (2012) 1 

ROBERTS, C. J., dissenting 

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] 

CHIEF JUSTICE ROBERTS, with whom JUSTICE 

GINSBURG, JUSTICE BREYER, and JUSTICE ALITO join, 

dissenting. 

Today the Court concludes that the Federal Government

must pay the full amount of contract support costs incurred by the respondent Tribes, regardless of whether

there are any appropriated funds left for that purpose.

This despite the facts that payment of such costs is 

“subject to the availability of appropriations,” a condition 

expressly set forth in both the statute and the contracts 

providing for such payment, 25 U. S. C. §§450j–1(b), 

450l(c) (Model Agreement §1(b)(4)); that payment of the 

costs for all tribes is “not to exceed” a set amount, e.g., 108 

Stat. 2511, an amount that would be exceeded here; and 

that the Secretary “is not required to reduce funding for

programs, projects, or activities serving a tribe to make

funds available to another tribe,” §450j–1(b). Because the 

Court’s conclusion cannot be squared with these unambiguous restrictions on the payment of contract support costs,

I respectfully dissent.

The Indian Self-Determination and Education Assistance Act provides: “Notwithstanding any other provision

in [the Act], the provision of funds under this [Act] is

subject to the availability of appropriations . . . .” Ibid. 
 

 

 

2 SALAZAR v. RAMAH NAVAJO CHAPTER 

ROBERTS, C. J., dissenting 

This condition is repeated in the Tribes’ contracts with the

Government. App. 206; see also §450l(c) (Model Agreement §1(b)(4)). The question in this case is whether appropriations were “available” during fiscal years 1994

through 2001 to pay all the contract support costs incurred 

by the Tribes. Only if appropriations were “available”

may the Tribes hold the Government liable for the unpaid 

amounts. 

Congress restricted the amount of funds “available” to 

pay the Tribes’ contract support costs in two ways. First, 

in each annual appropriations statute for the Department of the Interior from fiscal year 1994 to 2001, Congress provided that spending on contract support costs for

all tribes was “not to exceed” a certain amount. The 

fiscal year 1995 appropriations statute is representative.

It provided: “For operation of Indian programs . . . , 

$1,526,778,000, . . . of which not to exceed $95,823,000 

shall be for payments to tribes and tribal organizations for 

contract support costs . . . .” 108 Stat. 2510–2511. As the 

Court acknowledges, ante, at 11–12, the phrase “not to 

exceed” has a settled meaning in federal appropriations

law. By use of the phrase, Congress imposed a cap on the 

total funds available for contract support costs in each

fiscal year. See 2 General Accounting Office, Principles of

Federal Appropriations Law, p. 6–8 (2d ed. 1992) (hereinafter GAO Redbook) (“[T]he most effective way to establish 

a maximum . . . earmark is by the words ‘not to exceed’ or

‘not more than’”).

Second, in §450j–1(b) itself—in the very same sentence

that conditions funding on the “availability of appropriations”—Congress provided that “the Secretary [of the

Interior] is not required to reduce funding for programs, 

projects, or activities serving a tribe to make funds available to another tribe or tribal organization under [the Act].”

An agency may be required to shift funds from one object 

to another, within statutory limits, when doing so is 
 

 

 

Cite as: 567 U. S. ____ (2012) 3 

ROBERTS, C. J., dissenting 

necessary to meet a contractual obligation. See 1 GAO 

Redbook, p. 2–26 (2d ed. 1991). But the “reduction” clause 

in §450j–1(b) expressly provides that the Secretary is “not 

required” to engage in such reprogramming to make one 

tribe’s funds “available to another tribe.” It follows that 

appropriations allocated for “programs, projects, or activities serving a tribe” are not “available” to another tribe, 

unless the Secretary reallocates them. Contrary to the 

Court’s suggestion, ante, at 13–14, the Government shares 

this view that the “reduction” clause “specifically relieves 

the Secretary of any obligation to make funds available to

one contractor by reducing payments to others.” Brief for 

Petitioners 51 (citing Arctic Slope Native Assn., Ltd. v. 

Sebelius, 629 F. 3d 1296, 1304 (CA Fed. 2010), cert. pending, No. 11–83 (filed July 18, 2011)).

Given these express restrictions established by Congress—which no one doubts are valid—I cannot agree with 

the Court’s conclusion that appropriations were “available” to pay the Tribes’ contract support costs in full.

Once the Secretary had allocated all the funds appropriated

for contract support costs, no other funds could be used

for that purpose without violating the “not to exceed” restrictions in the relevant appropriations statutes. The 

Court agrees. Ante, at 11–12. That leaves only one other

possible source of funds to pay the disputed costs in this

case: funds appropriated for contract support costs, but 

allocated to pay such costs incurred by other tribes. Those 

funds were not “available” either, however, because they 

were “funding for programs, projects, or activities serving 

a tribe,” and the Secretary was not required to reduce

such funding “to make funds available to another tribe.” 

§450j–1(b).

In reaching a contrary conclusion, the Court fails to 

appreciate the full significance of the “reduction” clause in

§450j–1(b). As construed by the Court, that clause merely 

confirms that the Secretary “may allocate funds to one 
 

 

 

 

4 SALAZAR v. RAMAH NAVAJO CHAPTER 

ROBERTS, C. J., dissenting 

tribe at the expense of another.” Ante, at 9. But as explained above, the clause does more than that: It also 

establishes that when the Secretary does allocate funds to 

one tribe at the expense of another, the latter tribe has no

right to those funds—the funds are not “available” to it.

The fact that the Secretary could have allocated the funds 

to the other tribe is irrelevant. What matters is what the 

Secretary actually does, and once he allocates the funds to

one tribe, they are not “available” to another.

The Court rejects this reading of the “reduction” clause,

on the ground that it would constitute a “radical departure

from ordinary Government contracting principles.” Ante, 

at 13, n. 6. But the fact that the clause operates as a 

constraint on the “availability of appropriations” is evident 

not only from its text, which speaks in terms of “funds

available,” but also from its placement in the statute,

immediately following the “subject to the availability” 

clause. Under the Court’s view, by contrast, the “reduction” clause merely “underscores the Secretary’s discretion 

to allocate funds among tribes.” Ante, at 13. There is, 

however, no reason to suppose that Congress enacted the

provision simply to confirm this “ordinary” rule. Ibid. We 

generally try to avoid reading statutes to be so “insignificant.” TRW Inc. v. Andrews, 534 U. S. 19, 31 (2001) 

(internal quotation marks omitted).

The Court maintains that its holding is compelled by 

our decision in Cherokee Nation of Okla. v. Leavitt, 543 

U. S. 631 (2005). Ante, at 8. Like respondents here, the

tribes in Cherokee Nation sued the Government for unpaid 

contract support costs under the Act. Congress had appropriated certain sums to the Indian Health Service “[f]or 

expenses necessary to carry out” the Act, e.g., 108 Stat. 

2527–2528, but—unlike in this case—those appropriations 

“contained no relevant statutory restriction,” 543 U. S., at

637. The Government in Cherokee Nation contended that 

it was not obligated to pay the contract support costs as 
 

 

Cite as: 567 U. S. ____ (2012) 5 

ROBERTS, C. J., dissenting 

promised, in light of the “reduction” clause in §450j–1(b).

The Government argued that the clause “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.’” Id., at 641 (quoting §450j–1(b)).

We ruled against the Government, but not because of 

any disagreement with its reading of the “reduction”

clause. The basis for our decision was instead that “the 

relevant congressional appropriations contained other 

unrestricted funds, small in amount but sufficient to pay 

the claims at issue.” 543 U. S., at 641 (emphasis altered). 

Those funds were allocated for “‘inherent federal functions,’ such as the cost of running the Indian Health Service’s central Washington office.” Id., at 641–642. They

were not restricted by the “reduction” clause, because they 

were not funds for “‘programs, projects, or activities serving . . . another tribe.’” Id., at 641 (quoting §450j–1(b)). 

Nor were they restricted by the pertinent appropriations 

statutes, which, as noted, contained no relevant limiting 

language. See ibid. We therefore held that those funds— 

which we described as “unrestricted” throughout our 

opinion, id., at 641, 642, 643, 647—were available to pay 

the disputed contract support costs. 

As even the Tribes concede, Cherokee Nation does not 

control this case. Tr. of Oral Arg. 39 (“I don’t think this

case is controlled by Cherokee” (counsel for the Tribes)).

The reason is not that the appropriations statutes in this

case contained “not to exceed” caps while those in Cherokee Nation did not. The Court is correct that appropriating an amount “for” a particular purpose has the same 

effect as providing that appropriations for that purpose

are “not to exceed” that amount. Ante, at 11. What makes 

this case different is where Congress drew the line. In 

Cherokee Nation, the statutes capped funding for “expenses 

necessary to carry out” the Act, a category that included 
 

 

6 SALAZAR v. RAMAH NAVAJO CHAPTER 

ROBERTS, C. J., dissenting 

funding for both “inherent federal functions” and contract 

support costs. Accordingly, funding for one could be used 

for the other, without violating the cap. Here, by contrast, 

the statutes capped funding for contract support costs 

specifically. Thus, once the Secretary exhausted those

funds, he could not reprogram other funds—such as 

funds for “inherent federal functions”—to pay the costs. 

With the caps in place, moreover, the “reduction” clause, as 

explained above, rendered unavailable the only possible 

source of funds left: funds already allocated for other 

contract support costs. Unlike in Cherokee Nation, therefore, there were no unrestricted funds to pay the costs at

issue in this case. The Court’s quotation from Cherokee 

Nation concerning “when an ‘ “unrestricted appropriation 

is sufficient to fund the contract,” ’ ” ante, at 12 (emphasis 

added) (quoting Cherokee Nation, supra, at 641), is accordingly beside the point.

The Court also relies on Ferris v. United States, 27 Ct. 

Cl. 542 (1892). That case involved a government contract 

to dredge the Delaware River. When work under the 

contract stopped because funds from the relevant appropriation had been exhausted, a contractor sued the Government for breach of contract, and the Court of Claims 

held that he was entitled to recover lost profits. As the 

court explained, “[a] contractor who is one of several persons to be paid out of an appropriation is not chargeable 

with knowledge of its administration, nor can his legal 

rights be affected or impaired by its maladministration or 

by its diversion, whether legal or illegal, to other objects.” 

Id., at 546. That principle, however, cannot “dictate the

result in this case.” Ante, at 8. The statute in Ferris 

appropriated an amount “[f]or improving [the] Delaware 

River,” which prevented spending for that purpose beyond 

the specified amount. 20 Stat. 364. But in that case, all 

funds appropriated for that purpose were equally available to all contractors. Here that is not true; §450j–1(b) 
 

 

 

Cite as: 567 U. S. ____ (2012) 7 

ROBERTS, C. J., dissenting 

makes clear that funds allocated to one contractor are not 

available to another. Thus, the principle in Ferris does not 

apply.

It is true, as the Court notes, ante, at 10, that each of 

the Tribes’ contracts provides that the Act and the contract “shall be liberally construed for the benefit of the 

Contractor.” App. 203; see also §450l(c) (Model Agreement 

§1(a)(2)). But a provision can be construed “liberally” as 

opposed to “strictly” only when there is some ambiguity to 

construe. And here there is none. Congress spoke clearly

when it said that the provision of funds was “subject to the 

availability of appropriations,” that spending on contract

support costs was “not to exceed” a specific amount, and 

that the Secretary was “not required” to make funds allocated for one tribe’s costs “available” to another. The 

unambiguous meaning of these provisions is that when

the Secretary has allocated the maximum amount of funds

appropriated each fiscal year for contract support costs, 

there are no other appropriations “available” to pay any 

remaining costs.

This is hardly a typical government contracts case.

Many government contracts contain a “subject to the

availability of appropriations” clause, and many appropriations statutes contain “not to exceed” language. But this 

case involves not only those provisions but a third, relieving the Secretary of any obligation to make funds “available” to one contractor by reducing payments to others.

Such provisions will not always appear together, but when 

they do, we must give them effect. Doing so here, I would

hold that the Tribes are not entitled to payment of their

contract support costs in full, and I would reverse the 

contrary judgment of the Court of Appeals for the Tenth

Circuit.