[Senate Report 104-288]
[From the U.S. Government Publishing Office]
Calendar No. 454
104th Congress Report
SENATE
2d Session 104-288
_______________________________________________________________________
HELPING FAMILIES DEFRAY ADOPTION COSTS, AND PROMOTING THE ADOPTION OF
MINORITY CHILDREN
_______
June 24, 1996.--Ordered to be printed
_______________________________________________________________________
Mr. McCain, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany H.R. 3286]
The Committee on Indian Affairs, to which was referred the
bill (Title III of H.R. 3286), the Adoption Promotion and
Stability Act of 1996, having considered the same, reports
favorably thereon with an amendment and recommends that the
bill, as amended, do pass.
The Committee on Indian Affairs, to which was referred
Title III of the bill (H.R. 3286) to help families defray
adoption costs, and to promote the adoption of minority
children, having considered the same, reports favorably thereon
with an amendment and recommends that the bill as amended do
pass.
purposes
The purpose of H.R. 3286 is to help families defray
adoption costs, and to promote the adoption of minority
children.
background on indian child welfare policy
The Indian Child Welfare Act of 1978 (ICWA) was enacted by
the Congress in response to growing concerns in the 1970's over
the consequences of the separation of large numbers of Indian
children from their families and tribes through adoption or
foster care placement. In particular, the Congress expressed
concern over the inordinately high number of placements of
Indian children into non-Indian homes and environments,
concluding that ``[t]he wholesale separation of Indian children
from their families is perhaps the most tragic and destructive
aspect of American Indian life today.'' \1\ Congressional
oversight hearings in 1974, 1977 and 1978 documented many
examples of this wholesale removal of Indian children from
their families and homes. Studies conducted by the Association
of American Indian Affairs (AAIA) prior to enactment of ICWA
revealed that 25 to 35 percent of all Indian children had been
separated from their families and placed into adoptive
families, foster care, or other institutions.\2\ In certain
States, the problem of public and private agencies removing
Indian children from their homes and placing them off the
reservation in non-Indian homes was more widespread. For
example, in Minnesota from 1971 through 1972 nearly one in
every four Indian infants under the age of one year old was
placed for adoption. Over this same period the adoption rate of
Indian children was five times that of non-Indian children and
approximately 90% of these Indian placements were in non-Indian
homes.\3\
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\1\ H. Rept. 95-1386, 2d Session, 1978, at page 9.
\2\ H. Rept. 95-1386, 2d Session, 1978, at page 9.
\3\ Id. at page 9.
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Several witnesses in hearings before the Senate and House
Committees testified about the serious adjustment problems
encountered by these Indian children as they reached
adolescence and then later as they themselves became parents.
Chief Calvin Isaac of the Mississippi Band of Choctaw Indians
testified that:
Culturally, the chances of Indian survival are
significantly reduced if our children, the only real
means for the transmission of the tribal heritage, are
to be raised in non-Indian homes and denied exposure to
the ways of their People. Furthermore, these practices
seriously undercut the tribes' ability to continue as
self-governing communities. Probably in no area is it
more important that tribal sovereignty be respected
than in an area as socially and culturally
determinative as family relationships.\4\
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\4\ Hearings on Indian Child Welfare before the Senate Subcommittee
on Indian Affairs. 95th Cong., 1st Session (1977).
In recognition of the best interest of Indian children and
the interest of Indian tribes in the welfare of their children,
the Congress carefully crafted the ICWA to protect the
important traditional role played by an Indian tribe and the
extended family in child welfare. The result is that the ICWA
creates a jurisdictional framework that balances the interest
of Indian tribal governments with the interest of State
governments in determining the best interests of Indian
children. The ICWA recognizes the exclusive jurisdiction of
tribal courts for proceedings involving an Indian child who
resides or is domiciled on Indian lands. For other proceedings
involving Indian children, the ICWA provides for concurrent
jurisdiction with tribal and State courts. In these
proceedings, ICWA creates a statutory presumption that the
tribal court will have jurisdiction over matters involving
Indian children. This jurisdictional framework was favorably
described in the majority opinion of the U.S. Supreme Court in
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Mississippi Band of Choctaw Indians v. Holyfield:
At the heart of the ICWA are its provisions
concerning jurisdiction over Indian child custody
proceedings. Section 1911 lays out a dual
jurisdictional scheme. Section 1911(a) establishes
exclusive jurisdiction in the tribal courts for
proceedings concerning an Indian child ``who resides or
is domiciled within the reservation of such tribe,'' as
well as for wards of tribal courts regardless of
domicile. Section 1911(b), on the other hand, creates
concurrent but presumptively tribal jurisdiction in the
case of children not domiciled on the reservation: on
petition of either parent or the tribe, state-court
proceedings for foster care placement or termination of
parental rights are to be transferred to the tribal
court, except in cases of ``good cause,'' objection by
either parent, or declination of jurisdiction by the
tribal court.\5\
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\5\ Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30,
36 (1989).
Founded on the assumption that the most basic trust
responsibility of the Federal government is to provide
protection and assistance to Indian children, Indian families
and Indian tribes, the ICWA recognizes that the most
appropriate means of providing that protection and assistance
is through the Indian tribe itself. Well-settled principles of
federal law establish that the primary authority in matters
involving the relationship of an Indian child to his or her
parents or extended family should be the Indian child's tribe.
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The Supreme Court in Holyfield recognized this principle.
Tribal jurisdiction over Indian child custody
proceedings is not a novelty of the ICWA. Indeed, some
of the ICWA's jurisdictional provisions have a strong
basis in pre-ICWA case law in federal and state
courts.\6\
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\6\ Mississippi Band of Choctaw Indians v. Holyfield, 490 US 30
(1989) at 42.
The Act also establishes other procedural safeguards for
Indian child custody proceedings that include requirements
concerning notice and appointment of counsel, parental and
tribal rights of intervention, and procedures governing
voluntary consent to termination of parental rights. Finally,
the Act requires that tribal court decisions on child custody
matters shall be accorded full faith and credit.
In creating these procedural safeguards, the language of
the statute makes it demonstrably clear that the Congress
sought to ``protect the best interests of Indian children and
to promote the stability and security of Indian tribes and
families by the establishment of minimum Federal standards for
the removal of Indian children from their families and the
placement of such children in foster or adoptive homes which
will reflect the unique values of Indian culture, and by
providing for assistance to Indian tribes in the operation of
child and family service programs.'' \7\
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\7\ 25 U.S.C. Sec. 1902.
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In the eighteen years since the ICWA was enacted,
comprehensive, up-to-date and accurate statistical information
on the placement of Indian children under the ICWA is
essentially not available. A nationwide survey conducted in
1988 found that the rate of Indian children in out-of-home
placements as compared to non-Indian children remained
disproportionately high.\8\ The authors of this report
indicated that ten years after passage of the ICWA, Indian
children continued to be placed in substitute care at a rate
3.6 times greater than the rate for non-Indian children.\9\
Although many things influence such statistics, the authors
found a primary factor to be that implementation of the ICWA
has been uneven and that often the Act has been ignored by
State and private agencies.\10\ The report concluded that
despite these discouraging findings, where the ICWA has been
implemented and honored, there has been measurable progress.
For example, there was a decline in public agency placements
despite an increase in out-of-home placements for Indian
children overall.'' \11\ The majority of these placements took
place in tribally-operated child welfare programs, which would
indicate that Indian tribal governments were taking a more
active role in providing child welfare services to their
members.
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\8\ Margaret Plantz, et al., ``Indian Child Welfare: A Status
Report'' (1988).
\9\ Id. at page 9-1.
\10\ Id. at page ES-8.
\11\ Id. at page ES-9.
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title iii of h.r. 3286
Title III of H.R. 3286 amends Title I of the Indian Child
Welfare Act of 1978 by creating several new sections to the
Act. Section 301 of H.R. 3286 would exempt from the application
of the ICWA all custody proceedings involving a child who is
not a resident of or domiciles on an Indian reservation and
whose biological parents if ``of Indian descent'' and does not
maintain ``significant social, cultural or political
affiliation'' with his or her Indian tribe. This section
provides that a State court would make the determination that
an Indian parent does or does not maintain significant social,
cultural, or political affiliations with his or her Indian
tribe. Finally, section 301 provides that a State court's
determination that the ICWA does not apply because an Indian
parent has failed to maintain ``significant social, cultural,
or political affiliations'' with his or her tribe would be a
``final'' determination which would not be reviewable by
appellate courts.
Only parents and children who are eligible to be members of
a Federally-recognized Indian tribe are not covered by the ICWA
procedures. The U.S. Supreme Court has long recognized that
tribal membership is a political rather than a racial
classification. Section 301 would change the definition of an
Indian under the ICWA from a political classification to a
racial one and require a determination that a biological parent
sufficiently maintain personal ties with his or her Indian
tribe. Such a change could have the effect of expanding the
definition of those individuals covered by the ICWA to all
persons claiming Indian descent, regardless of whether there is
an Indian tribe which would deem them eligible for membership.
By shifting the application of the ICWA to persons of Indian
descent, this section could render the ICWA vulnerable to legal
challenge as furthering a constitutionally-impermissible racial
classification.
A fundamental precept, unchanged since the inception of
Federal-Indian law and reaffirmed by the U.S. Supreme Court in
Santa Clara Pueblo v. Martinez,\12\ is that Indian tribal
governments have the exclusive authority to determine
membership criterion under tribal laws and constitutions. These
determinations of tribal membership are considered to be the
most basic exercise of tribal sovereignty and self-governance.
Section 301 would take this fundamental power away from Indian
tribes and give it to State courts, vesting in the State
judiciary the power to decide whether a person is of Indian
descent and if so, whether that person maintains ``significant
social, cultural, or political affiliation'' with an Indian
tribe. State courts are poorly equipped to make fundamental
determinations of tribal membership and tribal affiliations.
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\12\ Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).
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Under section 301, a State court making tribal affiliation
determinations would be exempted from any requirement to notify
an Indian child's biological family or tribe of the pending
determination. The ICWA now requires prior notice by a State
court to an Indian child's biological family and tribe before
making custody determinations in certain cases. Section 301
would authorize a State court to make a determination on the
Indian status of the child without any prior notice to
interested members of the child's biological family or tribe,
and thereafter exempt the child's case from all remaining
notice and participatory requirements of the ICWA.
The application of the ICWA under current law is premised
on a child's eligibility for political membership in a
Federally-recognized Indian tribe. Tribal membership can be
renounced, but each Indian tribe's membership criteria and
enrollment procedures are different, as is the manner in which
those actions are documented. In some cases, a tribal roll is
used. In others, a voting list is used that is limited to those
persons of majority age. Still other tribal constitutions limit
formal membership to those residing on a reservation or within
the boundaries of a Native village, treating those who migrate
for work or school as ``eligible'' to assume membership upon
their return. Section 301 proposes to empower a State court to
decide whether a parent is an Indian at the time of the child
custody proceeding. Under the procedures set out in Section
301, an Indian would be found to have no tribal affiliation at
the time of inception of the custody proceeding even though he
or she was born and raised within an Indian community, was
enrolled as a member, but then moved to go to college and thus
under the tribal constitution was no longer on the roll but
merely ``eligible'' to be an enrolled member upon his or her
return.
Finally, section 301 seeks to make a State court's decision
on the applicability of the Indian Child Welfare Act non-
reviewable by appellate courts. Under the process set out in
this section, a State court is not required to provide any
notice to an Indian child's biological family or Indian tribe
in making a determination of whether an individual is ``of
Indian descent'' and has maintained sufficient affiliation with
the tribe. Therefore, a State court could move with dispatch in
a summary ex parte proceeding early in a case involving an
Indian child and then have its determination be immune from
appeal if an Indian biological family or tribe later learn of
the custody proceeding after the Indian status determination
has been made.
Section 302 of H.R. 3286 would amend Title I of the Indian
Child Welfare Act by creating a new section 115. Section 302
declares that, as a matter of Federal law, anyone 18 years or
older who is not a member of an Indian tribe ``may become a
member of an Indian tribe only upon the person's written
consent.'' This provision is not limited to the context of
Indian child welfare proceedings but could apply to all
applications of tribal membership in Federal law. This section
would also authorize a State court to determine what is a
biological parent's ``actual date of admission to membership in
the Indian tribe'' and declare that tribal's membership ``shall
not be given retroactive effect.'' Under this provision, the
fundamental authority to determine individual membership is an
Indian tribe would be vested in the State judiciary, severely
undermining longstanding principles of Federal Indian law and
tribal self-government.
Further, these provisions would place a substantial,
unfunded Federal mandate upon Indian tribes to maintain
evidence of each member's written consent to membership.
Failure to maintain such files would cause, when combined with
the other provisions of this Title, a significant loss of
tribal rights and privileges. While these provisions appear to
seek to make tribal membership voluntary, tribal membership is
already voluntary in every instance since under tribal law
membership can be renounced by an Indian of majority age.
Renouncing of one's tribal membership is typically done in
instances when an Indian is eligible for membership in more
than one tribe, but is required by a particular tribe's law to
hold membership in no other tribe.
Finally, Section 303 of H.R. 3286 provides that the
amendments made by this Title would take effect upon enactment
and apply to any child custody proceeding in which a final
decree has not been entered as of the date of enactment. This
amendment would apply new rules to a number of child custody
cases already under review by the courts. Authorizing the
retroactive application by a court of a newly-legislated change
of law can disrupt judicial economy and encourage litigants to
delay court proceedings while they seek private relief from the
Congress rather than pursue relief in the courts.
In sum, the amendments to the ICWA proposed by Title III
would seriously undermine longstanding principles of Federal
Indian law and result in a significant erosion of tribal
sovereignty. If enacted, fundamental determinations of tribal
membership would be transferred to an ill-equipped State
judiciary for a final, non-reviewable determination. Such a
process conflicts with the Congress' longstanding commitments
to tribal self-governance and tribal self-determination. In
addition, the Committee is very troubled by several serious
procedural due process and constitutional questions which are
raised by these proposed amendments. For these reasons, the
Committee voted to strike Title III in its entirety from H.R.
3286 and report H.R. 3286, as amended, to the full Senate with
the recommendation that it be passed without any amendments to
the Indian Child Welfare Act of 1978.
Legislative History
H.R. 3286 was introduced by Representative Molinari on
April 23, 1996 in the House of Representatives and was referred
to the Committee on Ways and Means, the Committee on Resources,
and the Committee on Economic and Educational Opportunities.
The bill was favorably reported by the Committee on Resources
with an amendment on April 30, 1996. On April 30, 1996, the
Committee on Economic and Educational Opportunities was
discharged of the bill and on May 3, 1996, the Committee on
Ways and Means favorably reported the bill with an amendment.
H.R. 3286 was passed by the House of Representatives on May 10,
1996.
In the Senate, the bill was referred to the Committee on
Finance on May 13, 1996. On May 23, 1996 pursuant to a
unanimous consent agreement, Titles I, II and IV of H.R. 3286
were referred to the Committee on Finance and Title III of H.R.
3286 was referred to the Committee on Indian Affairs for a
period of ten (10) days of session after the Committee on
Finance has reported the bill. On June 12, 1996, the Committee
on Finance favorably reported H.R. 3286, with amendments to
Titles, I, II, and IV. On June 19, 1996, the Committee on
Indian Affairs, by a vote of 14 for, and 1 against, favorably
reported H.R. 3286 with an amendment.
COMMITTEE RECOMMENDATION AND TABULATION OF VOTE
In an open business session on June 19, 1996, the Committee
on Indian Affairs, by a vote of 14 for, and 1 against, ordered
the bill reported with an amendment, with the recommendation
that the Senate pass the bill as reported.
SECTION BY SECTION ANALYSIS
The Committee on Indian Affairs struck all of the
provisions in Title III of H.R. 3286.
COST AND BUDGETARY CONSIDERATIONS
The cost estimate for Title III of H.R. 3286 as amended, as
calculated by the Congressional Budget Office is set forth
below:
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 20, 1996.
Hon. John McCain,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared a cost estimate for Title III of H.R. 3286, the
Adoption Promotion and Stability Act of 1996, as ordered
reported by the Senate Committee on Indian Affairs on June 19,
1996.
The committee adopted an amendment that would strike Title
III of H.R. 3286. Therefore CBO estimates that Title III of
H.R. 3286, as ordered reported by the Committee on Indian
Affairs, would have no federal budgetary effects.
Since enactment would not affect direct spending or
receipts, pay-as-you-go procedures would not apply to this
title of the bill. Title III of H.R. 3286, as ordered reported,
contains no mandates as defined in Public Law 104-4 and would
impose no direct costs on state, local or tribal governments,
or the private sector.
If you wish further details on this estimate, we will be
pleased to provide them.
Sincerely,
James L. Blum,
(For June E. O'Neill, Director).
regulatory impact statement
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill. the Committee believes that striking
Title III of H.R. 3286 will create no regulatory or paperwork
impacts.
executive communications
The Committee received the following executive
communications from the Honorable Bruce Babbitt, Secretary of
the Interior, U.S. Department of the Interior, and Mr. Andrew
Fois, Assistant Attorney General, U.S. Department of Justice
regarding Title III or H.R. 3286:
The Secretary of the Interior,
Washington, June 18, 1996.
Hon. John McCain,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: In a letter to the Speaker, the
President has stated his strong support for H.R. 3286 and its
purpose of encouraging the adoption of children. However, in
our role as trustee for Indians and Indian tribal governments,
we would have serious concerns if an amendment were offered to
H.R. 3286 for the purpose of amending the Indian Child Welfare
Act of 1978 (Public Law 95-608). These concerns are addressed
below.
The United States has a government-to-government
relationship with Indian tribal governments. Protection of
their sovereign status, including preservation of tribal
identity and the determination of Indian tribal membership, is
fundamental to this relationship. The Congress, after ten years
of study, passed the Indian Child Welfare Act (ICWA) of 1978
(P.L. 95-608) as a means to remedy the many years of widespread
separation of Indian children and families. The ICWA
established a successful dual system that establishes exclusive
tribal jurisdiction over Indian Child Welfare cases arising in
Indian country, and presumes tribal jurisdiction in other cases
involving Indian children, yet allows concurrent state
jurisdiction in Indian child adoption and custody proceedings
where good cause exists. This system, which authorizes tribal
involvement and referral to tribal courts, has been successful
in protecting the interests of Indian tribal governments,
Indian children, and Indian families.
The ICWA amendments proposed in Title III of H.R. 3286, as
introduced, would effectively dismantle this carefully crafted
system by allowing state courts, instead of tribal courts with
their specialized expertise, to make final judgments on behalf
of tribal members. Such decisions would adversely affect tribal
sovereignty over tribal members as envisioned by the ICWA and
successfully implemented for the past 18 years.
We therefore urge the committee to disallow the
reintroduction of Title III into this bill.
The Office of Management and Budget has advised that there
is no objection to the presentation of this report from the
standpoint of the Administration's program.
Sincerely,
Bruce Babbitt.
------
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, June 18, 1996.
Hon. John McCain,
Chairman, Senate Committee on Indian Affairs,
Washington, DC.
Dear Mr. Chairman: This letter presents the views of the
Justice Department on H.R. 3286, the ``Adoption Promotion and
Stability Act of 1996.'' We strongly support H.R. 3286 without
the inclusion of title III. We also recommend that title II be
modified to addressed the concerns below.
Title II
Section 201(a) of H.R. 3286 would allow any person denied
the opportunity to be an adoptive or foster parent on the basis
of race, color or national origin by a State, or any person
aggrieved by a State's discrimination in making a placement
decision in violation of the Act to sue the State in Federal
court. To ensure that the immunity from suit granted States by
the Eleventh Amendment does not prevent individuals from
vindicating this right, we suggest that the bill include a
provision clarifying that section 201 is enacted pursuant both
to Congress' authority under section 5 of the Fourteenth
Amendment and to its spending power under article I of the
Constitution. Alternatively section 201 could be modified to
expressly require a State to waive its Eleventh Amendment
immunity from suits brought pursuant to H.R. 3286, as a
condition of receiving Federal payments for foster care and
adoption assistance.
Title III
A. Detrimental impact on tribal sovereignty
The proposed amendments interfere with tribal sovereignty
and the right of tribal self-government. Among the attributes
of Indian tribal sovereignty recognized by the Supreme Court,
is the right to determine tribal membership. Santa Clara Pueblo
v. Martinez, 436 U.S. 49 (1978). Section 302 of H.R. 3286
provides that membership in a tribe is effective from the
actual date of admission and that it shall not be given
retroactive effect. For persons over 18 years of age, section
302 requires written consent for tribal membership. Many tribes
do not regard tribal enrollment as coterminous with membership
and the Department of Interior, in its guidelines on Indian
child custody proceedings, has recognized that ``[e]nrollment
is the common evidentiary means of establishing Indian status,
but is not the only means nor is it necessarily
determinative.'' \1\ Through its membership restrictions, H.R.
3286 may force some tribal governments to alter enrollment and
membership practices in order to preserve the application of
the Indian Child Welfare Act (ICWA), 25 U.S.C. 1901 et seq., to
their members.
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\1\ Guidelines for State Courts; Indian Child Custody Proceedings,
44 Fed. Reg. 67,586 (Nov. 6, 1979).
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B. Detrimental impact on tribal court jurisdiction
H.R. 3286 would amend the ICWA to require a factural
determination of whether an Indian parent maintains the
requisite ``significant social, cultural, or political
affiliation'' with a tribe to warrant the application of the
Act. Title III fails to indicate which courts would have
jurisdiction to conduct a factual determination into tribal
affiliation. To the extent that State courts would make these
determinations, H.R. 3286 would undercut tribal court
jurisdiction, and essential aspect of tribal sovereignty. See
Iowa Mutual Ins. Co. v. La Plante, 480 U.S. 9, 18 (1987).
Reducing tribal court jurisdiction over Indian Child Welfare
Act proceedings would conflict directly with the objectives of
the ICWA and with prevailing law and policy regarding tribal
courts.
The President, in his Memorandum on Government-to-
Government Relations with Native American Tribal Governments
(April 29, 1994), directed that tribal sovereignty be respected
and tribal governments consulted to the greatest extent
possible. Congress has found that ``tribal justice systems are
an essential part of tribal governments and serve as important
forums for ensuring public health and safety and the political
integrity of tribal governments, ``See Indian Tribal Justice
Act, 25 U.S.C. 3601(5). Retaining ICWA's regime of presumptive
tribal jurisdiction crucial to maintaining harmonious relations
with tribal governments, to ensuring that the tribes retain
essential features of sovereignty and to guarding against the
dangers that Congress identified when it enacted ICWA in 1978.
Thank you for the opportunity to comment on this matter. If
we may be of additional assistance, please do not hesitate to
call upon us. The Office of Management and Budget has advised
that there is no objection to the submission of this letter
from the standpoint of the Administration's program.
Sincerely,
Ann M. Harkiss,
(For Andrew Fois, Assistant Attorney General).
changes in existing law
The Committee's action to strike Title III of H.R. 3286
will result in no changes in existing law.