Judge Dislikes Law but Rules Tribe Can Claim Baby Back From Indian Mother

Saying he was deeply disturbed that American Indians have the right to “reach into a woman’s womb” in child custody cases, a judge in Santa Ana 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 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 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 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 rights of the baby’s mother because it gives the tribe the unilateral power to assume control of the baby if she is put up for adoption.

Unless the law is changed by the U.S. Supreme Court or rewritten by Congress, Polis said, he must follow it.

“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, 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 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 Rebecca returned to Orange County. But that move has been delayed while the proposed adoptive parents appeal the Canadian ruling.

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