The Battle over Baby K.

By Richard Lacayo

Not all custody battles involve contending parents. The fight over a nine- month-old girl named Allyssa is a classic clash of cultures. The mother, Patricia Keetso, 21, is an unwed Navajo Indian who would like her daughter to be adopted by Rick and Cheryl Pitts of San Jose, who have been caring for the baby since birth. But tribal officials, fearing that the flow of Indian foster children to non-Indian homes threatens their survival as a people, are seeking to rear the baby on their Arizona reservation. The emotional case has become a symbol of tribal resistance to the baby drain.

Keetso and the Pittses were brought together through San Jose lawyers who arrange adoptions. She lived at the couple's home for three months before giving birth last July. But in April, Navajo officials, who refer to the child as Baby K., convinced a California judge that any decision about custody should rest with the tribal courts. At a hearing last week, a tribal judge in Tuba City returned Allyssa temporarily to the Pittses, but a final decision is still pending.

The case has produced its share of wild scenes, charges and countercharges. At a Phoenix airport two weeks ago, a hysterical Cheryl Pitts chased after Navajo social workers who she claims seized the child and spirited her away to the reservation. Keetso and the Pittses charge that Navajo officials violated an understanding that Allyssa would be placed solely in the care of her maternal grandmother until the hearing. Instead, they say, the child was left in the home of a stranger, where she was neglected and quickly fell ill. Tribal authorities deny that such an understanding existed and contend that the baby's illness was due to a change of formula.

The battle over Allyssa is in part a legacy of the 1978 Indian Child Welfare Act, a federal law that has been invoked in thousands of custody disputes. It empowers tribal courts to make custody and foster-care decisions in most cases involving American Indian children. A large proportion of such youngsters are in the care of adoptive or foster parents, a situation that results partly | from a high incidence of teenage pregnancy, parental alcoholism and out-of- wedlock births on the impoverished reservations. Before the 1978 law, it was common for state courts and child-welfare agencies to place Indian children with foster and adoptive parents who were not Native Americans.

The outflow led some tribes to fear for their cultural survival. Studies conducted in 1969 and 1974 found that between 25% and 35% of American Indian children were placed in institutions or in adoptive or foster care, mostly in non-Indian households. It was not unheard of for social workers to take children away from their parents "simply because their homes had no indoor plumbing," says David Getches, an expert on Indian law at the University of Colorado. Because it has discouraged such abuses and kept more Indian families together, says Getches, the legislation is a "success story."

But an imperfect one, say some Indians. State courts can retain decision- making power in custody cases by invoking a "good cause" provision -- for instance, if there is reason to believe the child might be neglected or abused on the reservation. That provision is interpreted too freely, says Attorney Jacqueline Agtuca, an Indian advocate at the Legal Assistance Foundation in Chicago.

On the other side, non-Indian critics of the law charge that it permits tribal courts to remove Indian children from foster homes where they have lived happily for years. They complain that it allows tribes to lay claim to children who have never lived on a reservation, simply because one of their parents is part Indian.

Ironically, the would-be adoptive father of Baby K. is one-quarter Indian, of the Tarascan tribe of Mexico. He claims that he would see to it that Allyssa is not entirely deprived of her heritage. But for Rick Pitts, when he imagines the child growing up on the reservation, the images of poverty blot out the virtues of cultural identity. "Look at the houses, look at the shacks," he says. "Most likely she'd grow up, get disgusted, leave and never come back." Last week Allyssa awaited her fate wearing a layer of sweet powder. A Navajo medicine man had covered her with it during a ceremony performed to expel evil spirits. Perhaps it will protect her from the injuries of a bitter custody fight.

With reporting by Scott Brown/Tuba City and Elizabeth Taylor/Chicago