Aleut Tribe Given Adoption Control of Baby : Courts: A judge reluctantly rules that Indian nation has legal rights to a Cypress woman’s baby. A Mississippi case last year set a precedent, he said.

Saying he is deeply disturbed that American Indians have the right to “reach into a woman’s womb” in child-custody cases, a judge reluctantly ruled Friday that federal law entitles the Aleut tribe to claim a part-Aleut baby whose mother has put the child up for adoption.

Orange County Superior Court Judge Robert J. Polis said that under the 1978 Indian Child Welfare Act, the Alaskan tribe has the power to deem 7-month-old Rebecca Argleben a member of the tribe and to override her mother’s wishes that she be reared by a non-Indian family.

Attorneys for the Aleuts had argued that federal law treats Indian tribes as sovereign nations, entitled to define their own membership, preserve their culture and stem the breakup of their families. That right, they argued, is more important than a mother’s desire to govern the adoption of her baby.

Rebecca’s unmarried mother, 18-year-old Jodi Argleben of Cypress, contends that she should not be controlled by the tribe’s wishes because she no longer has any connection with Indian culture.

Polis said he sympathized with the plight of Indians and is obligated to uphold the law that Congress designed to protect them.

But he said he believes the law violates the due-process rights of the baby’s mother because it gives the tribe the unilateral power to claim Rebecca as a member of the tribe and assume control of the baby if she is put up for adoption.

Polis said he also has “serious problems” with the law because it “really supersedes” a woman’s constitutional right to choose whether she will terminate a pregnancy or not. In Argleben’s case, Polis said, once she chose to have the child, and to put her up for adoption, the Indians were entitled to “take the baby away.”

But unless the law is revised by the U.S. Supreme Court or rewritten by Congress, Polis said, he must follow it.

“It offends me dearly that they can reach out and define who is an Indian child and define themselves into existence and violate what I think are equally constitutional rights,” Polis said.

“The implication of what we have happening today is that a nation, in this case one that’s 5,000 miles away, can literally dictate to a woman, literally reach into her womb and take away a right from her,” he said.

After the hearing, Argleben repeated her vow to raise Rebecca herself rather than surrender the baby to the tiny fishing village of Akhiok on Alaska’s Kodiak Island, where Argleben says she was abused by alcoholic parents. When she was 18 months old--six years before the Indian Child Welfare Act was enacted--Argleben was adopted by a non-Indian couple.

“I’ve been there,” she said, referring to her visit to Akhiok last summer. “I’ve seen it. It’s not the best place for her (Rebecca) to be raised. I don’t want the same thing to happen to her that happened to me.”

Argleben said she is angry that the tribe is “trying to make my decisions for me.”

At another hearing next month, Argleben’s lawyer will argue that a loophole in the law still permits her to override the tribe and win permission for a couple in Vancouver, Canada, to adopt Rebecca.

Argleben, a high school senior, resigned her tribal membership shortly after Rebecca was born, but the tribe responded by voting the baby in as a member. Argleben smuggled the baby to British Columbia in September to avoid giving the child to the tribe. She placed the baby with the Canadian couple and went into hiding. But the Aleuts located Rebecca and challenged the adoption.

A judge in British Columbia ruled Jan. 5 that Canadian courts lacked jurisdiction to decide the case and ordered that Rebecca be returned to Orange County. But that move has been delayed while the proposed adoptive parents appeal the Canadian ruling.

Friday, Polis ordered that Rebecca stay with the Canadian family at least until another court hearing in Orange County on Jan. 29.

The husband of that Canadian couple, who have never been publicly identified, told The Times Friday that the Aleuts “don’t give a damn about Rebecca.”

“It’s sickening,” he said. “The baby is chattel to them. She’s got a loving family here and they want to yank her out of it.”

One of the Aleuts’ lawyers, Jack Trope of New York, told Polis that the courts have repeatedly upheld the Indians’ right to keep babies in the tribe if their parents put them up for adoption. He cited a U.S. Supreme Court ruling last year that denied a Mississippi Choctaw couple the right to have their twins adopted by a non-Indian couple.

In that ruling, the justices noted that the adoption rate among Indians is eight times higher than among non-Indians, and that 80% of those children are brought up by non-Indian families, Trope said. The justices also noted that Indian children often have “adjustment troubles” growing up outside their culture, Trope said.

Addressing the tribe’s power to define who is and who isn’t an Indian, Polis worried that the law could enable the tribe to “start reaching out and grabbing people of 1/64th or 1/28th (Indian blood) ad infinitum, to make anyone who has some Indian blood a member of the tribe.”

But Trope responded that the right to define membership is critical to the Indians’ self-determination.

“Just as it’s within the right of the United States to decide who can be a citizen, it’s within the right of the tribe to decide who’s going to be a member,” Trope said.

Argleben’s attorney, Christian R. Van Deusen, said the Indian Child Welfare Act was intended to prevent the removal of Indian children from their families. He acknowledged that the “outflow” of Indian children into non-Indian families was so severe before the 1978 law was passed that “the culture and heritage of the Indians was being depleted.”

But in Rebecca’s case, Van Deusen said, the Aleuts are trying to take her from the environment in which she and her mother were both raised.

“The Indians don’t have the right to take the child out of the Anglo community, out of its primary heritage, and create what they want: an Indian household,” Van Deusen said.