Congress passed the Indian Child Welfare Act (ICWA) in 1978 in an effort to stop American Indian families from having their children removed by state and local officials for invalid and sometimes even racist reasons. Yet 36 years later, Indian children in South Dakota are 11 times more likely to be removed from their families and placed in foster care than non-Indian children.

The ACLU filed a lawsuit in March 2013 in federal court on behalf of the Oglala Sioux and the Rosebud Sioux tribes in South Dakota and on behalf of a class of all Indian families living in Rapid City, South Dakota, the state's second largest city. We sued state and local officials who, we contend, repeatedly violate ICWA.

We recently examined 120 transcripts of initial custody hearings – known as "48-hour" hearings – held during the past four years involving Indian children. Nearly 100 percent of the time, Indian children were removed from their homes in those hearings. The average length of time those hearings took was less than 4 minutes. Within that time, of the six different judges that oversaw the hearings, not one judge ever told one Indian parent that they have a right to contest the state's petition for temporary custody of their children in the hearing on the petition.

During those hearings, the parents were not told the reasons for the removal, not provided with an attorney, not allowed to submit any evidence, and not allowed to cross-examine the Social Services worker who had submitted an affidavit against them. In most cases, the parents were not even allowed to see the affidavit.