The Migratory Bird Treaty Act established federal ownership of economically important migratory birds, and in doing so it shifted the power to regulate wildlife away from the states.

Until 1920, wildlife management was a state-level activity. In 1913, however, the federal Migratory Bird Act Migratory Bird Act (1913) was passed to protect migratory game and insectivorous birds from excessive hunting pressure. Lower federal courts found the act unconstitutional. In 1916, Congress concluded a treaty with Great Britain for the protection of migratory birds, and in 1918, Congress passed the Migratory Bird Treaty Act to implement the provisions of the treaty. In 1920, this act withstood a constitutional challenge brought to the U.S. Supreme Court in Missouri v. Holland. Missouri v. Holland (1920) The Court decided that the treaty power of the federal government, unlike its legislative power, is not constrained by the constitutional rights of the states. The decision destroyed the doctrine of state ownership of wildlife and set the stage for further assertions of federal supremacy. Migratory Bird Treaty Act (1918)
[kw]Migratory Bird Treaty Act (July 3, 1918)
[kw]Bird Treaty Act, Migratory (July 3, 1918)
[kw]Treaty Act, Migratory Bird (July 3, 1918)
[kw]Act, Migratory Bird Treaty (July 3, 1918)
Migratory Bird Treaty Act (1918)
[g]United States;July 3, 1918: Migratory Bird Treaty Act[04520]
[c]Environmental issues;July 3, 1918: Migratory Bird Treaty Act[04520]
[c]Laws, acts, and legal history;July 3, 1918: Migratory Bird Treaty Act[04520]
Weeks, John Wingate
McLean, George Payne
Lacey, John F.
Pearson, T. Gilbert

The Migratory Bird Treaty Act was the first successful challenge to the established legal doctrine that ownership and control of wildlife were vested in state governments and held in trust for state citizens. Based on English common law, the state ownership doctrine evolved as states sought to protect their dwindling fish and game resources from heavy commercial demand. The height of the state ownership doctrine was reached in Geer v. Connecticut (1896), Geer v. Connecticut (1896) in which a Connecticut law that prohibited interstate transportation of game that had been lawfully killed in Connecticut was successfully defended against the charge that this was unconstitutional interference with interstate commerce. The Supreme Court decided that the state, as owner of the wildlife, could impose any reasonable restriction on its use, alive or dead.

Although Geer established the states’ rights to prohibit the export of wildlife, states still had no mechanism to prohibit the importation of wildlife. Many states had laws restricting hunting and the sale of illegally harvested game, but they were hampered in enforcing such laws by market hunters who brought in game killed in other states. Dealers charged with violating state laws could claim that their product was taken in another state, and it was virtually impossible to disprove such assertions. Solving such problems was clearly a federal concern, given that the matter involved interstate commerce. In 1900, Representative John F. Lacey of Iowa introduced a bill in Congress to remedy this problem.

Passed in 1900, the Lacey Act Lacey Act (1900) provided federal sanction to state laws that prohibited interstate transportation of unlawfully killed animals. The act also allowed states to assume that any dead wildlife found within a state had been killed in the state and thus was subject to state game laws. The Lacey Act helped the states in their efforts to enforce existing laws, but it did nothing to regularize or to enhance protection for migratory birds. Across the nation, a patchwork of hunting regulations and irregular enforcement left many species at the mercy of the casual hunter. Lobbyists such as T. Gilbert Pearson of the National Association of Audubon Societies began to work toward federal regulation, and in a political climate that increasingly supported centralization of governmental power, they soon found supporters in Congress.

The first congressional attempt to establish federal control over migratory birds came in 1904, when Pennsylvania congressman George Shiras III introduced a bill to put the birds under the protection of the national government. His first bill died in the Agriculture Committee; a second attempt in 1906 failed as well. Two years later, after Shiras had retired, Massachusetts congressman John Wingate Weeks introduced a similar but also unsuccessful bill. By 1912, when Weeks, joined by Senator George Payne McLean of Connecticut, tried again, other interest groups had begun to rally around the cause. The firearms manufacturers and dealers were interested in protecting their markets, and game associations wished to preserve their sport. Some advocates were moved by the plight of the disappearing species and the wanton slaughter, especially for feathers in women’s hats. The bill was expanded to include insectivorous birds, bringing agricultural interests into the fold, and the legislation was hidden as a rider to an agricultural appropriations bill and was signed by President William Howard Taft on March 4, 1913, as his administration was rushing to a close. Taft later said that he thought the migratory-bird provisions of the bill were unconstitutional and that he would have vetoed the bill had he been aware of its contents.

Relying on the interstate commerce clause of the Constitution, the Migratory Bird Act, also known as the Weeks-McLean Act, Weeks-McLean Act (1913)[Weeks Maclean Act] gave jurisdiction over migratory birds to the federal Department of Agriculture. Challenges to the Migratory Bird Act reached the federal courts in United States v. Shauver in 1914 and United States v. McCullagh in 1915; in both cases, the courts relied on Geer, finding the Migratory Bird Act to be an unconstitutional exercise of federal power.

President Taft had not been alone in his misgivings over the act. Only a month after the act became law, the rapid state response challenging the bill led Senator McLean to introduce a resolution asking the president to negotiate a North American treaty to protect migratory birds. The resolution passed, aided considerably by the public furor over the 1914 death of the last known passenger pigeon. Treaty negotiations with Great Britain (on behalf of Canada) began almost at once. The Convention for the Protection of Migratory Birds Convention for the Protection of Migratory Birds (1916) was signed on August 16, 1916, and swiftly ratified by the Senate; the convention entered into force on August 22, 1916.

Opposition in Congress to the enabling act for the Migratory Bird Treaty was stiff. Members of Congress were dismayed that the treaty power was being used to give the federal government an authority that would otherwise be unconstitutional, and issues of states’ rights were hotly debated. Even members who recognized the need to protect diminishing bird populations feared that this use of the treaty power to limit state authority might undermine the federal system of government. They warned that the national government might use the same vehicle to invade other areas constitutionally reserved to the states. Nevertheless, Congress passed enabling legislation in 1917, and on July 3, 1918, President Woodrow Wilson signed the Migratory Bird Treaty Act.

The states moved promptly to challenge the enabling legislation in court, but use of the federal treaty power complicated their arguments considerably. The landmark case that decided the supremacy of the treaty power over the reserved rights of the states was Missouri v. Holland (1920). This case arose in federal district court against federal game warden Ray P. Holland, whose enforcement of the Migratory Bird Treaty Act in Missouri was interfering with the amount of state revenues generated by hunting. The district judge found that the treaty-making power of the United States was supreme over state authority; therefore, he ruled, the Migratory Bird Treaty Act was constitutional. Missouri appealed to the Supreme Court, but the Court upheld the lower-court decision. The Migratory Bird Treaty Act was indeed constitutional; the erosion of the state ownership doctrine confirmed in Geer had begun.

Early in the Progressive Era, the issue of regulating wild game seemed settled: No matter how unsatisfactory state efforts might be, the states’ power to regulate was practically absolute. Within twenty years, however, the federal presence in wildlife regulation was permanently established. How did this happen?

The conservation movement was part of the larger Progressive movement Progressive movement at the turn of the century. Disgusted with the excesses of big business, monopolistic control of industry, and machine politics, reformers struggled to protect the rights of the people to the natural resources of the land, not in a spirit of preservation but rather to ensure that the opportunities and benefits held in reserve in these resources were accessible to the general public. The conservation movement was partly a response to the drive for rational and efficient organization of time and resources imposed on many facets of American life during this era. The precepts of scientific management in business overflowed into the public sector; government regulation of businesses such as the railroads and the passage of pure food and drug laws were motivated as much by goals of efficiency as by the public interest. The conservation movement also reflected the American people’s concern that the frontier was truly gone; the 1890 census had formally declared the closing of the American frontier. With the disappearance of the frontier, Americans could no longer accept wasteful exploitation of resources, and the movement to preserve some of the natural world that had partially defined the American experience gained wider acceptance.

Finally, federal assumption of control over wildlife was part of a larger effort to centralize national power. Virtually all congressional debates over the Migratory Bird Act of 1913 and the Migratory Bird Treaty Act of 1918 focused on the constitutional issues of the proper relationship between the state and federal governments. It is clear from the congressional debates and judicial opinions that all parties were agreed that game in general, and migratory birds in particular, needed protection. They also agreed that the federal acts would provide protection, yet they argued bitterly over the legislation. For the most part, the arguments were not on scientific or administrative grounds but rather on constitutional ones. Even men who favored the policy ends were driven to object to the policy means.

Using a popular policy agenda to achieve a hidden agenda is an ancient political ploy. Environmental policy is often used to camouflage less respectable goals, partly because environmental issues have such high social appeal. For example, historian Arthur McEvoy has noted that the regulation of California shrimp fisheries was as much an attempt to force Chinese immigrants out of business as it was scientific regulation of a natural resource.

Having flexed its muscles over migratory birds, the federal government allowed the states to retain some control over wildlife. Throughout much of the twentieth century, the states were given considerable autonomy in choosing how and to what extent they complied with federal guidelines, subject of course to the silken chains of federal money through such programs as the Pittman-Robertson Act (1937), Pittman-Robertson Act (1937)[Pittman Robertson Act] which redistributed a federal tax on ammunition and firearms sales to the states for wildlife restoration. Some protective legislation, however, such as the Marine Mammal Protection Act (1972), the Endangered Species Act (1973), and implementation legislation for the Convention for the International Trade in Endangered Species (1973), placed responsibility for compliance with the national government.

The courts have continued to support federal authority over wildlife: For example, federally owned lands within state borders are not subject to state regulation (Hunt v. United States, 1928), the federal government may kill animals on national land without state permits (New Mexico State Game Commission v. Udall, 1969), and the interstate commerce clause gives Congress the power to protect wildlife in navigable waters when such wildlife is affected by dredge and fill operations conducted on privately owned riparian land (Zabel v. Tabb, 1970). None of this legislation would have been possible had the state ownership doctrine enunciated in Geer been allowed to stand. The Migratory Bird Treaty Act, which withstood a legal challenge to the constitutional right of the federal government to regulate wildlife, was thus the beginning of a unified national policy for wildlife regulation. Migratory Bird Treaty Act (1918)

• Bean, Michael J., and Melanie J. Rowland. The Evolution of National Wildlife Law. 3d ed. New York: Praeger, 1997. The essential background book. Covers the development of wildlife law from its common-law origins to the present day. Superb scholarship. Comprehensive, well-written, excellent resource.
• Belanger, Dian Olson. Managing American Wildlife: A History of the International Association of Fish and Wildlife Agencies. Amherst: University of Massachusetts Press, 1988. An organizational history commissioned by the association. Perhaps the association is not as pivotal a player as this book suggests, but the book’s state-level approach provides a valuable resource for understanding federal-state relations in wildlife management. Covering more than eighty years of conservation activity, the book is extremely well-researched and detailed.
• Chandler, William. “The U.S. Fish and Wildlife Service.” In Audubon Wildlife Report 1985, edited by Roger Di Silvestro. New York: National Audubon Society, 1985. The evolution of the Fish and Wildlife Service is complex, and Chandler writes an excellent, brief history of the evolution of the federal agency primarily responsible for wildlife management. The entire Audubon Wildlife Report series is highly recommended; each volume contains discussion of a featured agency, federal agency activities, and species accounts. The 1986 Wildlife Report has a special section on state wildlife conservation.
• Fox, Stephen. The American Conservation Movement: John Muir and His Legacy. 1981. Reprint. Madison: University of Wisconsin Press, 1986. Thorough biography of John Muir based on his personal papers and manuscripts. Uses the work of Muir and similar early environmental activists to chronicle the history of the conservation movement from 1890 to 1975. Important and fascinating glimpses into the back rooms of the early years in conservation policy formation. Strong scholarship, readable.
• Hays, Samuel. Conservation and the Gospel of Efficiency: The Progressive Conservation Movement, 1890-1920. Cambridge, Mass.: Harvard University Press, 1959. A classic work. This book defined early scholarship in environmental history. Hays makes a convincing argument that efficiency was the prime motivator for conservation in the Progressive Era.
• McEvoy, Arthur. The Fisherman’s Problem: Ecology and Law in the California Fisheries, 1850-1980. Cambridge, England: Cambridge University Press, 1986. This book is already a classic, cited by virtually every economic historian with an interest in the environment. The focus is on California, but the methodology is applicable to a wide range of environmental analysis. Although written for a scholarly audience, this will also be enjoyed by general audiences.
• Orr, Oliver H., Jr. Saving American Birds: T. Gilbert Pearson and the Founding of the Audubon Movement. Gainesville: University Press of Florida, 1992. Although sometimes mired in detail, this volume is a vivid account of the life of a poor boy interested in birds who became one of the most influential lobbyists in the United States. A good companion to Fox’s work on Muir.
• Sinclair, Anthony R. E., John M. Fryxell, and Graeme Caughley. Wildlife Ecology, Conservation, and Management. Malden, Mass.: Blackwell, 2006. An excellent introduction to ecology and conservation studies. Includes a CD that helps students create computer-based models of different ecological scenarios.
• Taber, Richard D., and Neil F. Payne. Wildlife, Conservation, and Human Welfare: A United States and Canadian Perspective. Malabar, Fla.: Krieger Publishing Company, 2003. Attempts to chronicle the history of human impact on wildlife and analyzes the response to its destruction.
• Tober, James A. Who Owns the Wildlife? The Political Economy of Conservation in Nineteenth Century America. Westport, Conn.: Greenwood Press, 1981. An extraordinarily fine book detailing the economic and political forces behind the conservation movement. Excellent complement to Bean’s The Evolution of National Wildlife Law.

First U.S. National Wildlife Refuge Is Established

Pinchot Becomes Head of the U.S. Forest Service

Conference on the Conservation of Natural Resources

National Park Service Is Created

National Parks and Conservation Association Is Founded

Migratory Bird Hunting and Conservation Stamp Act

Pittman-Robertson Act Provides State Wildlife Funding

U.S. Fish and Wildlife Service Is Formed