Here, from SCOTUSblog is a description of the issue:
In a ruling that the Justice Department is seeking to delay while it appeals, a federal judge has concluded that the federal government’s lawyers in the Supreme Court may have misled the Justices three years ago in efforts to win a key case on the rights of non-citizens facing deportation from the U.S. The New York judge rejected all of the government’s arguments for refusing to disclose significant parts of four pages of e-mail exchanges within the Solicitor General’s office about a policy claim they had made in the government’s brief in the Supreme Court case ofNken v. Holder, decided nearly three years ago. The new ruling by U.S. District Judge Jed S. Rakoff of New York City can be found here.
We here in the ILPC suite wondered whether this would be a big deal in an Indian law case. [We’re betting the Jicarilla attorneys have a view on this, though that case didn’t involve the SG so much.] But we are reminded by the SG’s lodging of documents in the Carcieri case that helped to form the heart of Justice Thomas’s majority opinion:
Furthermore, the Secretary’s current interpretation is at odds with the Executive Branch’s construction of this provision at the time of enactment. In correspondence with those who would assist him in implementing the IRA, the Commissioner of Indian Affairs, John Collier, explained that:
“Section 19 of the Indian Reorganization Act of June 18, 1934 (48 Stat. L., 988), provides, in effect, that the term ‘Indian’ as used therein shall include—(1) all persons of Indian descent who are members of any recognized tribe that was under Federal jurisdiction at the date of the Act … .” Letter from John Collier, Commissioner, to Superintendents (Mar. 7, 1936), Lodging of Respondents (emphasis added).
Of course, there’s a big difference between what Judge Rakoff found and this, to be sure. Moreover, we’re pretty sure all the parties were aware of this document or similar documents long before the SG lodged John Collier’s letter with the Court. In fact, this is probably an instance where the SG was being completely honest. But still! Man! C’mon!