Judge Reverses Self, Denies Tribe Say in Adoption

SANTA ANA —  In a surprise victory for a part-Aleut teen-age mother, a judge reversed himself Wednesday and decided that the woman’s 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 here and in British Columbia.

A final decision will almost certainly be delayed by appeals. But Argleben has sworn that she will rear Rebecca herself rather than surrender her to the Aleuts in Akhiok, the village of 100 on Kodiak Island, Alaska, where Jodi was born.

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

Jack Trope, the New York attorney who represents the Aleuts, said Wednesday that Polis’ decision is wrong. He said he was so shocked that he had not yet considered an appeal. But Argleben’s attorney, Christian R. Van Deusen, said he was certain the Aleuts will appeal.

Polis ruled Jan. 19 that the 1978 Indian Child Welfare Act gave the Aleuts the right to make sure that Rebecca is placed with an Aleut family. Arguing for power over the baby’s placement, the Aleuts had cited that law, which was 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 the law infringed a woman’s right to reproductive freedom by “reaching into her womb” and dictating who would rear her baby if she decided to give it up for adoption. But he said his personal objections to the law did not make it unconstitutional, so he had to follow it.

Faced with Argleben’s request for reconsideration, Polis indicated Wednesday 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 Indian nations must be given notice 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 of Indian children, 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 Caucasians who felt that troubled life on Indian reservations entitled them to “drag off their kids” and have them adopted by non-Indian families.

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

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

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

“Is this an ethnic argument?” he said. “If you were out there saying blacks or Italians, man, my hackles would be all over the place. But somehow because it’s Indians it’s OK?”

Argleben said the decision allows her to return to high school and feel confident Rebecca is being reared by a good family. She said the Aleuts’ battle for the baby baffles her, since they never resisted her own adoption or that of her sister, who were allegedly abused by alcoholic parents.

“I don’t know why they want her so bad,” Argleben said. “They never seemed to want me and my sister. Then all these years later they want Rebecca.”

Trope said after the hearing that the tribe is fighting for Rebecca because it believes it is best for both the child and the Indians that she grow up with them. He has contended earlier that Indian children can have trouble adjusting when they are cut off from their culture.

“The tribe believes that when it has the opportunity to bring a child back that has been lost to the tribe, both the child and the tribe will be better off,” he said.

But Van Deusen argued that Argleben’s rights have been “trampled” by the Indians’ fight for her child.

“She has indulged and withstood five months of litigation by attorneys who have made it clear they have unlimited resources to interfere with a (19)-year-old trying to get her life back together,” he told Polis. “Where do her constitutional rights get a foothold?”

BACKROUND

Jodi Argleben, 18, a half-Aleut single mother from Cypress, wants to put her 8-month-old baby girl up for adoption, but she does not want the child reared by an Aleut family. Argleben’s Alaskan tribe contends that the 1978 Indian Child Welfare Act gives it the power to place Rebecca with an Aleut family if she is put up for adoption. But Argleben disagrees, saying she should be able to decide who will raise her child. The case is pending before courts in Canada, where Rebecca has been placed with a Vancouver couple, and in Orange County.