Solution on Twins’ Future Eludes Judges : Court: Panel hears case but does not rule on whether to keep girls with adoptive family. Lower court ordered their return to birth parents under law preserving Indian tribes.

A clearly troubled state appellate court Wednesday expressed strong doubt that it can uphold a lower court’s order to return twin girls to their birth parents under a federal law intended to preserve Native American tribes and culture.

The three-judge panel questioned whether they should take the nearly 2-year-old girls from their adoptive family in Ohio and return them to their birth parents in Long Beach, who the judges said appeared to have little or no connection to their Northern California tribe.

The justices conceded that they could find no easy solution in the case of Bridget and Lucy Rost. An extraordinary three-hour hearing ended with the justices taking the case under advisement.

The case of the Rost twins has drawn nationwide attention. A congresswoman in their home state has moved to amend the Indian Child Welfare Act, the federal law that gives tribes unusual powers to sustain their memberships. The proposed changes would make it more difficult for tribes to retroactively reclaim members who have been adopted by outside families.

A furor ensued in June when a Los Angeles Superior Court ruled that the girls should be returned to the biological parents who gave them up at birth. Birth father Richard (Rick) Adams claimed membership in the Dry Creek band of the Pomo, a tribe that has been reduced to about 200 members and is struggling for survival.

The transfer of the girls back to Adams, though, was blocked by the 2nd District Court of Appeal, pending Wednesday’s hearing into the merits of the federal law. A decision is expected within two months.

Both sides predicted that the appellate court ruling will be just a chapter in the fight over the olive-skinned, dark-eyed girls who appeared on the cover of a national magazine this week. One of the justices said “these kids could be 10 years old before this case is resolved.”

Meanwhile, it is likely that Bridget and Lucy will remain in their adoptive home in Columbus, Ohio, with parents Jim and Colette Rost. The Rosts were in court Wednesday with the twins’ older sister, but the younger girls stayed home. Jim Rost said they are excitedly awaiting Halloween, when they will trick-or-treat dressed as kittens.

Rost, 40, declined to predict how the court will rule. “I’ve gotten out of the business of predicting what courts will do,” he said.

Attorney Jim Cohen, who argued for the Pomo tribe, said he is pessimistic about the outcome.

“My feeling is that these judges don’t understand Indian culture and that they are trying to take an action that Congress and the U.S. Supreme Court have not allowed,” Cohen said. “And that will just perpetuate the ethnic cleansing of tribes like the Pomos. This is a question of the survival of a culture against genocide.”

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A lawyer for the Rosts and another appointed by the court to represent the twins argued that it is not the tribe’s rights, but the girls’, that should be paramount. They said the twins would be better off remaining in the only home they have ever known.

“It is essential to me that the court recognize that children have fundamental liberty interests,” said Mitch Beckloff, the girls’ lawyer. “They are not to be shifted around like property.”

Beckloff argued that the judges should declare the entire Indian Child Welfare Act unconstitutional because, among other reasons, it denies due process to minors and makes an illegal race-based distinction for one group.

As the debate stretched to three hours, far beyond the single hour allotted in most cases, the justices seemed more interested in how they might find a narrow exception to the federal law. They noted that some state courts have limited the law to apply only to “existing” Indian families.

Attorney John Dodd argued that the law was designed principally to protect Indians on reservations from state agencies that had routinely placed Indian children with outsiders. He said urbanized Indians, such as the Adamses, were not contemplated by those who drafted the law. The Rosts’ lawyers earlier had argued that the girls each were only 3/32 Pomo.

The law “clearly did not intend this statute to apply to anyone, anywhere who might have some Indian blood coursing through their veins,” Dodd said.

All three justices seemed sympathetic to that argument. Justice H. Walter Croskey said the birth parents appeared to have “no connection, no ties . . . and apparently no interest at all” in their tribe, except to help them regain their children.

But Cohen said the Adams have close ties to the tribe. He said reservation residency is an undue burden to put on Native Americans to prove tribal membership--noting that many California Indians have moved to cities because they have little reservation land.

A tribe cannot survive “if you tell people they have to live in a ratty trailer on one tiny, rocky piece of land [to be members],” he said. “If that was the requirement for membership in this tribe, they would be totally wiped out.”

Cohen said the federal law requires that tribes be able to determine membership, which does not have to be based on lineage. Neither the Rosts nor the Adamses could have imagined the heart-wrenching legal struggle two years ago when their amiable meeting in the office of a Beverly Hills attorney produced the adoption agreement.

Cindy and Rick Adams, now 22 and 23, were straining to raise two sons and decided that they would have a better chance of improving the family’s lot if they put the then-unborn twins up for adoption. The Rosts had a daughter of their own but could not conceive another child and were thrilled at the chance to get two babies.

It was three months after the Rosts, now both 40, had taken the girls back to Ohio that Rick Adams changed his mind. He said he had been misled by the adoption lawyer into concealing his partial ancestry in the Pomo tribe to smooth the children’s transfer.