What is equal protection for Indian children in foster care?

The Indian Child Welfare Act (ICWA) was enacted in 1978 to protect the best interest of Indian children who were victims of abuse and/or neglect.  The intent was to promote stability of Indian tribes and families by ensuring that the child’s Indian tribe was given the opportunity to be the decision maker regarding custody.  On October 8, 2018, a federal district judge in Texas ruled ICWA and related regulations unconstitutional, in part, because the regulations are based on race and, therefore violate the equal protection clause of the Fifth Amendment. I am conflicted…are Indian children’s rights protected because their tribe may determine custody, or are Indian children’s rights violated because the only reason the tribe is given an opportunity to decide custody is based on the child’s ethnicity?

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