New Mexico Governor Michelle Lujan Grisham's July 2025 directive mandating child welfare custody of all newborns exposed to drugs or alcohol in utero has sparked fierce opposition from Native American tribes and civil liberties advocates, who argue it undermines tribal sovereignty and violates federal protections for Indigenous children.
Directive Sparks Confusion and Legal Challenge
Micha Bitsinnie, a policy manager at Bold Futures and Navajo Nation member, arrived at work to a flood of anxious calls from families and healthcare providers uncertain about what constituted drug exposure. Medications like methadone for addiction recovery or fentanyl in epidurals were questioned. The directive, issued without prior consultation with tribes, directly conflicts with the Indian Child Welfare Act (ICWA) and New Mexico's Indian Family Protection Act, which require immediate tribal notification and jurisdiction over Native child welfare cases.
The American Civil Liberties Union (ACLU) filed an emergency petition with New Mexico's Supreme Court in June 2025, arguing the directive "erodes important procedural safeguards for Indian families" and makes no reference to established federal and state protections. Nine tribes joined the lawsuit. Although the court declined to pause the mandate, it allowed legal arguments to proceed.
Contradiction with State Law and Medical Best Practices
The governor's directive also contradicts a state law passed months earlier, which tasked New Mexico's healthcare authority, not child welfare, with developing rules for treating drug use during pregnancy. Medical professionals advocate keeping families together to prevent trauma and encourage care, while lawmakers often push for custody due to high-profile cases of harm. This tension is especially acute for Native families, given the history of Indigenous child removal.
Since the directive took effect, at least 25 Native children have been flagged by child welfare, with tribes taking jurisdiction in only 10 cases, according to data from the state's Children, Youth and Families Department (CYFD). As of June 2025, 137 newborns had been taken into state custody under the directive, said CYFD spokesperson Jake Thompson.
Historical Context and Ongoing Compliance Issues
David Simmons, director of government affairs at the National Indian Child Welfare Association, stated, "I don't think there's any state that is in what I would call really substantive compliance with the Indian Child Welfare Act. And New Mexico's no different." The federal ICWA, passed in 1978 after centuries of forced assimilation, requires states to keep Native children in Native communities. Despite this, implementation remains inconsistent nationwide.
The Comprehensive Addiction and Recovery Act (CARA), signed into law in 2016, aimed to support families with substance-exposed newborns through voluntary "plans of safe care" and required ICWA compliance. However, nearly a decade later, addiction rates remain high. Overdose deaths in 2024 totaled nearly 80,000, with Native Americans disproportionately affected at 51.6 per 100,000—more than double the rate for all other races combined. New Mexico has consistently reported among the highest rates of substance-exposed newborns, with over one-third of infants born between 2016 and 2019 exposed to drugs, alcohol, or tobacco.
Lack of Resources and Tribal Consultation
Advocates say CARA was never properly funded or implemented. New Mexico did not allocate state funds for the policy change and remains understaffed in mental health services. "Even if families were accepting plans of care, there were no resources," Bitsinnie said. After two young children died from substance exposure, political pressure mounted, leading to the governor's directive that disposed of the voluntary protocol. Newborn deaths related to substance exposure are rare; Delaware found that 0.82% of children with a plan of safe care sustained a serious or fatal injury.
Navajo Nation President Buu Nygren expressed concerns in an April 2025 letter, stating, "While the Navajo nation supports the intent of the Comprehensive Addiction and Recovery Act to provide supportive, family-centered services, we have significant concerns that the proposed rule does not align with federal and state protections, including the Indian Child Welfare Act and the New Mexico Indian Family Protection Act. Additionally, the rule raises serious issues related to tribal sovereignty, jurisdiction, and the potential for unnecessary child welfare system involvement."
Voices from Tribal Communities
Donalyn Lorenzo, from Acoma Pueblo and former director of tribal affairs at CYFD, noted the policy was written without consulting tribes. "Child welfare would do well to learn from the values of our tribes. Safe children are created within safe communities," she said. Cynthia Chavers, a Lumbee tribe member and former CYFD tribal liaison, drew parallels to the era before ICWA, when hundreds of thousands of Native children were sent to boarding schools or adopted by white families. "I feel very strongly about stopping the genocide of our people by the continuous stealing of our children. Native children belong in Native communities," Chavers said.
