Judge Orders Return of Baby to County : Custody Fight: A Canadian jurist says California courts must decide who has legal claim to a 6-month-old Aleut child caught in adoption battle. The mother is fighting the tribe’s effort to gain custody.

An Aleut teen-ager lost a critical round in her unique custody battle against her native Alaskan tribe Friday when a Canadian judge ruled that she violated international law by smuggling her infant daughter to a British Columbia couple for adoption and ordered that the child be returned to Orange County.

In a 28-page decision, Justice Ian Donald of the Supreme Court of British Columbia said that the province lacks jurisdiction to decide whether the Aleuts have legal claim to 6-month-old Rebecca Argleben. He said the matter should be worked out in California courts.

The judge concluded that Rebecca’s biological mother, Jodi Argleben, 18, violated a section of the Hague Convention that forbids the transportation of children across international lines to flout the law, and said Rebecca should be returned to California “promptly.”

“There are no villains in this piece,” Donald wrote. “I am sure (Jodi) acted out of deep concern for the child without bad motive. The sincerity and generosity of the (prospective adoptive parents) can’t be doubted. The tribe is not simply trying to make a point of principle; it genuinely wants to bring the child within its community if the mother does not want her.

”. . . I make my decision about jurisdiction fully conscious of the distress and disappointment it will cause, but I do so with the firm conviction that this American problem must be sorted out in California.”

Jodi, through her adoptive parents, repeated her earlier vow: that she will never surrender Rebecca to the Indian tribe.

The Canadian decision prompted immediate anguish from the baby’s adoptive parents, a Vancouver couple whose identity has not been publicly disclosed. In his first public comment, the adoptive father told The Times he and his wife will seek an immediate order from a Canadian appeals court allowing them to keep Rebecca while the matter is resolved.

“This just tears the whole inside out of me,” said the adoptive father, who spoke on condition of anonymity. “The baby’s totally bonded with us. She’s got a family. I don’t understand how the Indians could possibly inflict this hurt on the child.

“Here’s a little girl almost 7 months old. She’s been in our family almost four months. How can anyone want to take this baby away from her family?”

Jodi Argleben, who has been at an undisclosed location since giving Rebecca to the Canadian couple Sept. 15, could not be reached late Friday to discuss the ruling. But Ernest Argleben of Cypress, who with his wife adopted Jodi from her Aleut village when she was 3 years old and raised her, said Jodi will keep the baby herself rather than let the Aleut tribe in Alaska have her.

“Jodi will never give the baby to the Indians,” Ernest Argleben said. “I don’t care what it takes. The Indians can scream, yell and holler. They’ll never get this baby. If we lose all the battles, Jodi will keep Rebecca herself.”

Christian R. Van Deusen, Jodi’s attorney in Orange County, said he will ask Superior Court Judge Robert J. Polis to permit the adoption to the Canadian couple.

“The child was legitimately placed,” he said. “There was no violation of the Hague Convention. Jodi was just exercising her constitutional right to place her child for adoption. She has no connection to the Indian tribe anymore.”

The novel case began in Orange County last summer, when Jodi, a single parent, filed suit to win permission to choose Rebecca’s adoptive family. Before a decision was made, she withdrew that action and fled to Canada with the baby, then went into hiding.

The Akhiok Tribal Council, which governs the tiny fishing village of Aleuts on Alaska’s Kodiak Island, has intervened in Jodi’s prospective adoption plans twice: once when she was still pregnant and had agreed to give her baby to a New York couple, and the second time in Canada.

Both times, the tribe has argued that the 1978 Indian Child Welfare Act gives it the right to place the baby with a tribal family if the mother chooses not to raise the child. The law was designed to stem the breakup of Indian families and the loss of their customs.

Jodi has fought that from the start, contending she did not want her baby raised in a poor village where she herself was abused by her biological parents before she was adopted by the Arglebens. She argued she severed her connection with the Indians long ago and should not be controlled by their wishes.

The matter came before the Canadian court when the British Columbia adoption authorities sought guidance in resolving the dispute. An attorney appointed to represent Rebecca in Canada argued that she was thriving in her new home and should stay.

A lawyer for the Canadian couple contended the tribe had no standing to intervene in a Canadian adoption. But Judge Donald did not have to decide that, because he ruled instead that Canada was not the place to resolve the matter. However, he indicated his leanings:

“The tribe has custody rights (and) would have exercised them but for the removal of the child from the California jurisdiction,” he said. “. . . The tribe has shown sufficient grounds for holding that it possesses ‘rights of custody’ within the meaning of the (Hague) Convention. The child has Indian ancestry. She is a member of the tribe. Her mother proposes to place her for adoption. These features establish a solid basis for the attribution of rights to the tribe.”

Bertram E. Hirsch, one of the New York attorneys who has represented the Aleuts in their fight against Jodi, said the Canadian decision is “extraordinary.” He said he will now pursue the tribe’s battle for Rebecca in Orange County courts.

“It shows you can’t take a baby out of the country in order to controvert the Indian Child Welfare Act,” he said.