Judge Rules Tribe Can’t Dictate Baby’s Fate

In a surprise victory for a part-Aleut mother, a Santa Ana judge reversed himself Wednesday and decided that the teen-ager’s native Indian tribe has no right to dictate who will adopt her 8-month-old baby.

The ruling by Orange County Superior Court Judge Robert J. Polis gave Jodi Argleben, 19, of Cypress, the right to choose who will rear her daughter, Rebecca. Argleben already has selected a couple in Vancouver, Canada, and smuggled the baby into their care in September. The baby has remained there during the protracted legal struggle over the adoption here and in Canada.

A final decision almost certainly will be delayed by appeals. But Argleben has sworn that she will rear Rebecca herself rather than surrender her to the Aleuts in Akhiok, the small village on Kodiak Island, Alaska, where the teen-ager was born.

Argleben beamed as Polis announced his decision Wednesday. Later, she said simply: “It’s great.”

Jack Trope, the attorney representing the Aleut tribe, said he was so shocked by Polis’ decision that he had not yet considered an appeal. But Argleben’s attorney, Christian R. Van Deusen, said he expects the Aleuts to appeal.

Polis ruled Jan. 19 that the 1978 Indian Child Welfare Act gave the tribe the right to make sure Rebecca is placed with an Aleut family. The Aleuts had cited that law, designed to stem the breakup of Indian families and the loss of their customs and culture.

Polis said at the time that he made the decision reluctantly, because he felt that the law infringed on a woman’s right to reproductive freedom by “reaching into her womb” and dictating who will rear her baby if she decides to give it up for adoption. But he said his personal objections did not make the law unconstitutional, so he had to follow it.

Faced with Argleben’s request for reconsideration Wednesday, Polis initially indicated that he was inclined to stick by his decision. But one hour later, he changed his mind.

Polis zeroed in on a section of the law that says that Indian nations must be notified when an Indian child is being taken from its parents against the parents’ will. But he noted that the law requires no such notice when an Indian child is voluntarily surrendered for adoption.

The judge reasoned that if Congress did not mandate notice to the Indians in voluntary adoptions, it “may well be that (Indian tribes) have no right to be heard” in those situations.

He said there is no question that Indian nations have been subjected to “crass racism and discrimination” by whites who felt that troubled life on tribal reservations entitled them to “drag off” Indian children and have them adopted by non-Indian families.

But the circumstances of Rebecca’s adoption are not the ones contemplated by Congress when it passed the Indian Child Welfare Act, Polis said. Rebecca has virtually no link to Aleut culture, since Jodi Argleben is only half Aleut and was adopted by a white family when she was 18 months old.

If the baby were being taken from her parents and an existing Indian community involuntarily, Polis said, his decision “would be quite different.”

He also told Trope, the lawyer for the Aleuts, that he was troubled by the fact that Rebecca’s Indian heritage means her mother loses control over her adoption.