Native American tribes and civil liberties groups are challenging a New Mexico directive that mandates the state's child welfare department seek custody of all newborns exposed to drugs or alcohol in utero, arguing it undermines tribal sovereignty and violates federal and state laws protecting Native families.
Governor's directive sparks immediate concerns
On July 1, 2025, Governor Michelle Lujan Grisham issued the directive, prompting confusion among families and healthcare providers. Micha Bitsinnie, a policy manager at Bold Futures and a Navajo Nation member, noted that families questioned whether medications like methadone for addiction recovery or fentanyl in epidurals would trigger custody actions. Research shows substance-exposed infants fare best when kept with families receiving supportive services.
Bitsinnie highlighted tensions 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. “How are we notifying families, tribes, nations, pueblos?” she asked.
Legal challenge and tribal opposition
The American Civil Liberties Union (ACLU) filed an emergency petition with the New Mexico Supreme Court, stating the directive “erodes important procedural safeguards for Indian families” and “makes no reference to specific procedures and safeguards for Indian children and families established in state and federal law.” Nine tribes joined the lawsuit. The state Supreme Court declined to pause the mandate in early June but allowed arguments to proceed.
The directive also contradicted a state law passed months earlier, which tasked the healthcare authority—not child welfare—with developing rules for treating drug use during pregnancy.
Historical context and ongoing struggle
The federal Indian Child Welfare Act of 1978 requires states to keep Native children in Native communities, a response to the mass removal of Indigenous children through boarding schools and the Indian Adoption Project. Between 1860 and the mid-1970s, hundreds of thousands of Native children were sent to boarding schools, where at least 1,000 died; in the 1950s and 60s, the Indian Adoption Project placed hundreds in white families.
David Simmons, director of government affairs at the National Indian Child Welfare Association, said no state is in “really substantive compliance” with ICWA. “New Mexico’s no different,” he added.
Implementation and data
Since the directive took effect, at least 25 Native children have been flagged by child welfare, with tribes taking jurisdiction in only 10 cases. As of late June, 137 newborns had been taken into state custody, according to CYFD spokesperson Jake Thompson.
New Mexico has high rates of substance-exposed newborns: more than one-third of infants born between 2016 and 2019 were exposed to drugs, alcohol, or tobacco. Yet the Comprehensive Addiction and Recovery Act (CARA), passed in 2016 to address the opioid epidemic, has not been fully implemented. New Mexico did not allocate state funds for CARA and remains understaffed in mental health services.
“Even if families were accepting plans of care, there were no resources,” Bitsinnie said.
Voices from the tribes
Navajo Nation President Buu Nygren wrote in an April letter that the rule “raises serious issues related to tribal sovereignty, jurisdiction, and the potential for unnecessary child welfare system involvement.” Donalyn Lorenzo, formerly of CYFD’s office of tribal affairs, said the policy was written without tribal consultation. “Safe children are created within safe communities,” she said.
Cynthia Chavers, a Lumbee tribe member and former CYFD tribal liaison, said the directive echoes pre-ICWA practices. “I feel very strongly about stopping the genocide of our people by the continuous stealing of our children,” she said. “Native children belong in Native communities.”
