Determinations on the validity of appropriation riders that modify or repeal
existing statutes have been discussed in detail by the United States Supreme Court. Several
general rules have been developed through related cases. First, repeal of legislation by
implication is disfavored. Tennessee Valley Authority v. Hill, 437 U.S. 153, 190 (1978).
This "applies with even greater force when the claimed repeal rests solely in an
Appropriations Act." Id. Thus, the Act cannot repeal by implication the provisions
of the JTPA that allow federally recognized Indian tribes, bands, and groups to participate in
receiving and distributing national funds for the benefit of Native Americans in their areas.
Second, "[o]nly a clear repugnance' between the previous legislation and the appropriations
bill warrants a finding that Congress intended to repeal the previous legislation."
Environmental Defense Center v. Babbitt, 95 C.D.O.S. 9368 (1995). Thus, the practical
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rule is that an appropriations rider does not modify or repeal an existing statute unless there is an
"affirmative showing of an intention to repeal . . . when the earlier and later statutes are
irreconcilable." Morton v. Mancari, 417 U.S. 535, 550 (1974). In this Act, if it is
assumed that the provisions of the JTPA and the Appropriations Act are irreconcilable, Congress
failed to make any affirmative showing of intent to repeal the JTPA. The one exception to the
general rule that an appropriations rider does not modify or repeal existing statutes is that
"Congress [nonetheless] may amend substantive law in an appropriations statute, as long as
it does so clearly." Robertson v. Seattle Audubon Society, 503 U.S. 429, 440-41
(1992). Congress could have amended the JTPA through the Act, but its statement in the
Appropriations Act was not clear if, what it was doing was to restrict the power of the DOL Grant
Officer to distribute funds appropriated under "this or any other Act for the benefit of
Indians residing within the jurisdictional service area" to the Cherokee Nation.
The issue for determination is whether Congress intended the
Appropriations Act to modify the distribution of funding under the JTPA. The primary indication
of congressional intent is the statute's language. United States v. Aguilar, 21 F.3d 1475,
1480 (9th Cir. 1994). The language of the Appropriations Act purports to restrict expenditure of
any federal funding within the Cherokee "jurisdictional service area" solely to the
Cherokee Nation.
Since the key phrase in the Appropriations Act, "jurisdictional
service area," is not used in the JTPA and is undefined in either act, it is, therefore, patently
(clearly) ambiguous. The only provision in the JTPA that refers to anything akin to the phrase is
one occurring under 29 U.S.C §1511 governing State job training funds, directing that its
job training coordinating council publish a proposed designation of "service delivery
areas," as otherwise set forth in that provision. The provisions governing training programs
for Native Americans as set forth in 29 U.S.C. § 1671 (b)(2) are directed at
"individuals to be served by the provisions of this section," and make such programs
available to, "federally recognized Indian tribes, bands, and groups and to other groups
and individuals of Native American descent." It concentrates on such individuals by
their representative groups, rather than their "service delivery areas" or
"jurisdictional service areas."
Use of the term "service areas" evolved solely by virtue of the
administration of the funds by the agencies and officials within those agencies, designated to
distribute those funds. In other words, the term "jurisdictional service area" is what
those officials say that it is, and not what Congress has defined. There could be no greater
ambiguity. The 1992 Appropriations Act was properly given no effect by the DOL Grant Officer.
In addition to the patent ambiguity left in the wake of its lack of definition,
there is a latent ambiguity inherent in the relationship of the Appropriations Act's terms with other
acts of Congress. Was the Appropriations Act intended to affect Indian tribes and bands beyond
the Keetowah Band for which it was originally drafted, or meant to affect all such tribes and
bands?9 This is not clear from an act of
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1 None of the parties have contended that there
are any facts in dispute in this case. Therefore, the order is being issued as a final decision and order.
2 The May 12, 1998, Order of the
undersigned stated: "On May 7, 1998, the Administrative Review Board reversed the November 14, 1997 stay order
of the undersigned and directed that further proceedings be conducted consistent with its order. The Board stated in its
order, Our concern is whether the language of the Appropriations Act binds DOL's Grant Officer. ... The funding in
question is from a DOL appropriation, and therefore it is our responsibility under these circumstances to ensure that the
DOL Grant Officer properly awards such monies. The issue of the legal effect of the 1992 Appropriations Act restriction
on the activities of DOL must be addressed by this agency, even if the District Court finds for the Delawares with regard
to its tribal status on the merits.' " (Order @ p. 3)
3 29 U.S.C. §§1501-1791
(1988) and regulations issued thereunder at 20 C.F.R. Parts 626-638 (1997)
4 Pub. L. 102-105, Stat. 990, 1004 (Nov.
13, 1991)
7 U. S. District Court for the District of
Columbia, Civ. No. 96-2284 (TFH). In this case, the issue of whether the Secretary of Interior properly included the
Delaware Tribe on the federal list of recognized Indian tribes is currently pending before the District Court on
remand from the United States Court of Appeals. See, Cherokee Nation of Oklahoma v. Babbitt, 117 F.3d
1489 (D.C. Cir. 1997), remanding 944 F. Supp. 974 (D.C. Cir. 1996).
10 The Board considers the issue
concerning the legal bases for the Delawares' relationships with the Cherokee Nation, the DOI, and its related agencies to
be beyond the scope of the issue before the DOL. The issue before the DOL, and therefore before the undersigned, is the
result of the legislation embedded in the Department of the Interior and Related Agencies Appropriations Act, which
appears to restrict any federal funding within the Cherokee Nation jurisdictional service area solely to the Cherokee
Nation.
11 A 1994 amendment to provisions
governing Protection of Indians and Conservation of Resources, and the organization of Indian Tribes, in particular,
prohibition on new regulations, prohibited the enhancement of the privileges of one tribe over another, stating:
"Departments or Agencies of the United States shall not promulgate any regulation or make any decision or
determination pursuant to ...25 U.S.C. 461 et seq. ... or any other Act of Congress, with respect to a federally
recognized Indian tribe that classifies, enhances, or diminishes the privileges and immunities available to the Indian tribe
relative to other federally recognized tribes by virtue of their status as Indian tribes." 25 U.S.C. 476(f), Pub. L.
103-263 § 5(b), 108 Stat.709 (May 21, 1994) This provision may or may not amend the Appropriations Act, but it
does, at the very least, express a sense of the Congress that programs such as the JTPA should be allowed to operate
without such appropriations act interference as that indicated in the 1992 Appropriations Act.
