New Mexico Gov. Michelle Lujan Grisham’s July 2025 directive requiring the state’s child welfare agency to seek custody of all newborns exposed to drugs or alcohol in utero has drawn legal challenges from Native American tribes and civil liberties advocates who say the policy violates federal and state laws protecting tribal sovereignty.
The directive, issued amid political pressure after the deaths of two young children from substance exposure, has resulted in 137 newborns being taken into state custody as of May 2026, according to New Mexico Children, Youth and Families Department spokesperson Jake Thompson. Tribal leaders and advocates argue the policy erodes procedural safeguards for Native families established under the Indian Child Welfare Act and a 2022 state law, and that it contradicts a separate legislative directive for the state’s healthcare authority to develop rules for treating drug use during pregnancy.
Micha Bitsinnie, a policy manager at the nonprofit organization Bold Futures and a member of the Navajo Nation, said she arrived at work one morning last July to an onslaught of messages from confused families. Some parents wondered whether medications they were taking for addiction recovery, such as methadone, would flag their cases. Healthcare providers wondered whether the fentanyl in an epidural counted as a drug exposure.
“The directive erodes important procedural safeguards for Indian families,” the ACLU wrote in an emergency petition it filed with New Mexico’s Supreme Court in May 2026, noting that it “makes no reference to specific procedures and safeguards for Indian children and families established in state and federal law.” Nine tribes signed onto the lawsuit. Although the state Supreme Court declined to pause the governor’s mandate in early June, it will allow arguments on the case to proceed.
The new directive also directly contradicted a law the state legislature had passed only months prior, directing the state’s healthcare authority — rather than its child welfare agency — to develop new rules for treating drug use during pregnancy.
The federal Indian Child Welfare Act, passed in 1978 in the aftermath of the mass separation of Native American families in the 19th and 20th centuries, requires states to make efforts to keep Native children in Native communities. A growing number of states, including New Mexico, have adopted state laws to strengthen their compliance with ICWA. But in New Mexico, at least 25 Native children have been flagged by child welfare since the governor’s directive went into effect, with tribes taking jurisdiction in only 10 of those cases.
“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,” said David Simmons, director of government affairs and advocacy at the National Indian Child Welfare Association.
New Mexico has consistently reported among the highest rates of substance-exposed newborns in the nation — more than one-third of infants born in the state between 2016 and 2019 were found to be exposed to drugs, alcohol or tobacco, according to state data.
The Comprehensive Addiction and Recovery Act, the leading federal response to the opioid epidemic, approaches its 10th anniversary in July. The law directed state child welfare agencies to support families by developing voluntary “plans of safe care” connecting parents to resources for newborns exposed to substances. It also required states to abide by the Indian Child Welfare Act. But advocates say CARA has never been properly implemented to address the problem. When New Mexico implemented a state version of the federal law, it did not allocate any state funds to the policy change and remains grossly understaffed on public mental health services.
“Even if families were accepting plans of care, there were no resources,” said Bitsinnie.
After two young children in New Mexico died after substance exposure, political pressure mounted, ultimately prompting Lujan Grisham’s July 2025 directive, which disposed of the voluntary protocol. Newborn deaths related to substance exposure are rare. In a review of its child welfare case registry, Delaware found that 0.82% of children given a plan of safe care sustained a serious or fatal injury.
Navajo Nation President Buu Nygren wrote in an April 2026 letter that while the Navajo Nation supports the intent of CARA 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.” He added that the rule “raises serious issues related to tribal sovereignty, jurisdiction, and the potential for unnecessary child welfare system involvement.”
Donalyn Lorenzo, who is from Acoma Pueblo and previously directed the office of tribal affairs at the state’s children, youth and families department, said she worries the policy was written without consulting tribal nations.
“Child welfare would do well to learn from the values of our tribes,” said Lorenzo, who noted the wide community of state, tribal and child welfare advocates who joined consultations on drafting the state’s ICWA law, passed in 2022. “Safe children are created within safe communities.”
Cynthia Chavers, a member of the Lumbee tribe who previously served as the field deputy director for New Mexico’s Protective Services Division and the tribal liaison for CYFD, said the governor’s directive harkens back to a time before ICWA, when Native children were separated from their families en masse. Hundreds of thousands of Native American children were sent to residential boarding schools intended to assimilate them, and the U.S. government later implemented a program called the Indian Adoption Project, which placed hundreds of Indigenous children in white families.
“I feel very strongly about stopping the genocide of our people by the continuous stealing of our children,” said Chavers. “Native children belong in Native communities.”