Cert Denied in N.R. v. Ellison
I have refused to engage in discussion of this petition for certiorari (request to take the case) to the U.S. Supreme Court because by all normal Supreme Court rules, this would have never been even given a second thought before being denied. Unfortunately, we live in unusual times, and as such, while I was fairly certain this would not be granted for review (as well as those I respect who know more about the Court than I do), I still had a literal dream last night that it was. I was also unwilling to engage in discussion about it because those seeking review by the Supreme Court were attempting to draw attention to the petition in other ways, since the case itself was such a bad vehicle.
What's a "bad vehicle," you ask? Well, believe it or not, the Supreme Court does still have rules it is supposed to follow when considering whether to grant cert, or hear, a case. One of these big rules is supposed to govern the Court's consideration of a petition, though the Court makes clear it still has discretion to hear whatever it wants (if you want to learn how we got to THIS point, I highly recommend Steve Vladek's book, The Shadow Docket, which discusses how the Court under Justice Taft managed to wrest control of its docket, and how Congress could change this entire process if it wanted to). Rule 10 gives three compelling reasons a Court would hear the case:
- There's a conflict between a decision in one federal court of appeal and another, or between a federal court of appeal and a state supreme court on an issue of an "important federal question," or the federal court of appeal has so departed from the usual and accepted course of judicial proceedings to require the Court to act (I have to say, this last one is particularly rich these days given the Court's behavior);
- The state court of last resort/state supreme court has decided a case on an "important federal question" that differs from a federal court of appeal or of another state court of last resort/state supreme court; or
- Either a state court of last resort or a federal appellate court has made a decision on an "important question of federal law" that the U.S. Supreme Court has not weighed in on but should, or the lower court decided it in a way that conflicts with a Supreme Court decision.
In all three situations, you've got to have an "important federal question." The N.R. case, which was a decision from the Minnesota Supreme Court, in no way decided anything approaching an "important federal question." If you've seen me present about this case, which is also known as the In re L.K. case, you will have heard me call it "exceedingly boring (complimentary)" such that I am not convinced I've read the whole thing all the way through yet (also complimentary). That's because the Minnesota Supreme Court based its decision on the intricacies of state law and rules surrounding permissive intervention, and then determined since the former foster parents were properly denied intervention, they also did not have standing to bring the constitutional questions (the usual Equal Protection challenge to ICWA and the Minnesota Indian Family Preservation Act), and therefore vacated (got rid of) the Minnesota Court of Appeals portion of ITS opinion discussing that.
State laws and rules are the generally purview of the state courts, not the federal courts, and are not appropriate for Supreme Court review. Especially if they are, as here, deciding a state law question not an "important federal question." Despite the attempt by the former foster parents to turn this into an important federal question, it simply was not. The Court agreed, and this case is done. The children at issue in this case were placed with relatives a number of years ago (triggering the initial appeal from the former foster parents), and remain so. This case was in the class of ICWA cases where foster parents challenge the removal of an Indian child from their home at any point, and even if the move is to relatives (as required in the placement preferences and preferred under state laws). I consider the In re M.K. case to be in this same vein, as well as the In re L.P. line of cases (those who remember "Navajo Blue" are my true and real friends). Taken to its furthest conclusion, the reasoning of former foster parents in these cases would even apply to reunifying children with their own parents.
Now, I have heard a lot in the past few years about how since the Court didn't decide the equal protection/political status question in Brackeen, that the case wasn't a full win for Indian Country. In my clinic and in my practice, I teach students that getting rid of a case on "justiciability" grounds is not just a win, but also what we are obligated to do under most court rules, if possible. This means if a person doesn't have the legal "standing" to bring a case, if the case is "moot" or otherwise over, or if a case isn't "ripe" or ready for review, then it gets dismissed without getting to the merits of the case.
There's a lot of academic debate about if the Court should be able to use these justiciability grounds in the first place, and a lot of practitioner consternation about the Court demolishing the standing doctrine recently. Regardless, when the Court does NOT hear the merits of the case on a justiciability ground, it means the prior holdings are still good, and in this Supreme Court, it means there are not enough Justices who want to change that particular issue. So just because one Justice in particular thinks the question of political status of tribal Nations should be considered by the Court does not mean it will be considered by the Court.
Maintaining the status quo on the political doctrine/the Morton v. Mancari standard is a win for Indian Country, however the courts get there. And I am happy to point out, again and again, how state court rules should be amended or changed to limit who has standing in child dependency cases as one way to get there.
Congratulations to the awesome attorneys who worked on this case from day one all the way up to the Supreme Court. Cert denied is an excellent outcome. Whether named or unnamed on that docket list, there is an incredible crew of people I consider myself lucky to know and work with who deal with these cases every time they arise.