When Governor Michelle Lujan Grisham issued an emergency directive last July requiring New Mexico to take custody of all newborns exposed to drugs and alcohol in utero, the message reached Micha Bitsinnie in a flood of panicked calls. Parents asked whether their methadone prescriptions would trigger removal. Healthcare providers questioned whether epidural fentanyl counted. Bitsinnie, a Navajo Nation member and policy manager at advocacy nonprofit Bold Futures, saw the problem immediately: the order bypassed tribal sovereignty protections written into state and federal law.
The directive contradicted decades of policy designed to keep Native families together. It sidestepped the 1978 Indian Child Welfare Act, which grants tribal governments jurisdiction over cases involving Native children. It also conflicted with a state law passed just months before, assigning substance-exposure protocols to the health department rather than child welfare.
Since the July 2025 order took effect, 137 newborns have been taken into state custody. Tribes have gained jurisdiction in only 10 of at least 25 cases flagged for Native children. The ACLU filed an emergency petition with New Mexico's supreme court with nine tribes signing on, arguing the directive "erases important procedural safeguards for Indian families." The court declined to pause the mandate but allowed arguments to proceed.
The tension reflects a deeper national failure to implement substance-exposure policy thoughtfully. For a decade, the Comprehensive Addiction and Recovery Act, passed in 2014, has guided states to create voluntary "plans of safe care" connecting parents to supportive services rather than removing children. Research shows children prenatally exposed to substances fare best in their own families with treatment for withdrawal symptoms.
But New Mexico never funded its version of the law and remains chronically short on mental health providers. "Even if families were accepting plans of care, there were no resources," Bitsinnie said. When two young children in the state died after substance exposure, political pressure mounted, and the governor scrapped the voluntary approach altogether.
The stakes for Native families carry historical weight. Between 1860 and the mid-1970s, hundreds of thousands of Native American children were sent to residential boarding schools intended to erase their cultures, killing at least 1,000. In the 1950s and 1960s, the U.S. government ran the Indian Adoption Project, placing hundreds of Indigenous children in white families. Cynthia Chavers, a Lumbee tribe member who previously served as tribal liaison for New Mexico's child welfare department, sees the new directive as echoing that era. "Native children belong in Native communities," she said.
The problem extends nationwide. David Simmons, director of government affairs at the National Indian Child Welfare Association, said no state genuinely complies with the Indian Child Welfare Act in substance. New Mexico passed a strengthened state law in 2022 after widespread tribal consultation, yet the governor's directive bypassed that process entirely, according to Donalyn Lorenzo, former director of tribal affairs at the state's child welfare agency.
New Mexico has consistently reported among the nation's highest rates of substance-exposed newborns, with more than one-third of infants born between 2016 and 2019 exposed to drugs, alcohol, or tobacco. Native Americans face the steepest toll: they recorded the highest overdose rate of any racial group at 51.6 per 100,000 in 2024, more than double the combined rate for all other races. Yet the state's response has been custody first, services second.
Navajo Nation President Buu Nygren warned in an April letter that the rule "does not align with federal and state protections" and raises "serious issues related to tribal sovereignty." He called for services centered on family support, the original intent of the federal law.
The directive reveals a persistent clash between harm reduction and punishment in drug policy, sharpened for Native communities by centuries of coercive family separation. Where medical experts and tribal leaders see a moment to strengthen families and cultural continuity, lawmakers focused on rare tragedy have chosen removal and state control.
Author James Rodriguez: "A decade-old law designed to support families is being abandoned just as tribes finally have a seat at the table to do it right."
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