916
Breyer, J., concurring
since "[t]he parties . . . clearly understood that the [Government's] navigational" rights were "dominant no matter how the question of riverbed ownership was resolved." Id., at 706.
The remaining case, Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U. S. 41 (1986), concerned an alleged promise closely related to the subject matter of the contract. A State and several state agencies claimed that Congress, in enacting a statute that gave States flexibility to include or withdraw certain employees from a federal social security program, promised not to change that "withdrawal" flexibility. But in Bowen, the statute itself expressly reserved to Congress the right to "alter, amend, or repeal" any of the statute's provisions. See id., at 55. Hence, it is not surprising to find language in Bowen to the effect that other circumstances would have to be "unmistakable" before the Court could find a congressional promise to the contrary.
A second reason to doubt the Government's interpretation of the "unmistakability" language is that, in all these cases, the language was directed at the claim that the sovereign had made a broad promise not to legislate, or otherwise to exercise its sovereign powers. Even in the cases in which damages were sought (e. g., Bowen, Cherokee Nation), the Court treated the claimed promise as a promise not to change the law, rather than as the kind of promise more normally at issue in contract cases, including this one—namely, a promise that obliges the government to hold a party harmless from a change in the law that the government remains free to make. See, e. g., Bowen, supra, at 52 (lower court decision "effectively . . . forbid[s] Congress to amend a provision of the Social Security Act"); Cherokee Nation, supra, at 707 (refusing to conclude that the Tribe "gained an exemption from the [Government's navigational] servitude simply because it received title to the riverbed interests"). It is difficult to believe that the Court intended its "unmistaka-
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