By Paul Schmidt
Have you ever wondered why migratory birds are protected by federal law across North America? The story behind this visionary waterfowl management partnership, which represents one of the greatest conservation achievements of the 20th century, still resonates today, 100 years later. It all started in 1916, when the United States and Canada negotiated a first-of-its-kind international treaty, formally known as the Convention between the United States and Great Britain (on behalf of Canada) for the Protection of Migratory Birds but more commonly called the Migratory Bird Treaty. As we celebrate the 100th anniversary of this conservation milestone, let's take a look back at the events and some of the people who spearheaded the effort to establish a solid foundation for the management of this continent's waterfowl and other migratory birds.
When the first explorers traversed the North American landscape, they witnessed a seemingly limitless abundance of wildlife. As settlers pushed west, however, the resulting conversion of native forests, prairies, wetlands, and other wildlife habitats caused dramatic declines of many abundant species. From the late 1860s to the early 1900s, market hunting also took a terrible toll on wildlife, particularly on populations of migratory birds such as waterfowl and wading birds. As Americans became more affluent, demand rose for wild game served at fine restaurants and for hats adorned with the feathers of wild birds.
Wildlife harvesting techniques also advanced at a rapid pace. Punt guns could kill 50 canvasbacks with a single shot, and semiautomatic shotguns made it possible for any skilled shooter to harvest hundreds of birds a day. Rail cars packed with commercially produced ice were used to ship harvested birds to cities located far from the hunting grounds. Waterfowl concentrations across the country were targeted and exploited by market hunters from Chesapeake Bay to the Gulf Coast of Texas and Louisiana to the Central Valley of California. The impact on waterfowl populations was significant, growing, and increasingly evident to sportsmen and other bird enthusiasts.
North American naturalists, including John James Audubon, John Burroughs, George Perkins Marsh, and William T. Hornaday, were outspoken in their belief that stronger measures were needed to protect wildlife, especially migratory birds, from overexploitation. They realized that migratory game birds were particularly vulnerable to market hunting and spring shooting. They also understood that the ability of migratory birds to cross geopolitical boundaries set them apart from other wildlife, and that a cooperative, international approach would be required to ensure their conservation.
Forest and Stream magazine was an early and influential advocate for the elimination of spring shooting, and in 1894 the publication declared that the sale of game should be outlawed. The magazine's editor, George Bird Grinnell, was a prolific writer and avid hunter who helped bring together sportsmen, other bird enthusiasts, and the scientific community in support of new wildlife conservation laws.
President Theodore Roosevelt was another avid hunter and naturalist who embodied the highest ideals of the nascent American conservation movement. Roosevelt and Grinnell campaigned against "game hogs" and market hunters, and promoted a sportsmen's code of ethics that received widespread support among the general public. Together, they launched an effort to end the careless exploitation of wildlife and to preserve migratory birds and their habitats. But Roosevelt and Grinnell were politically savvy enough to know that to fully protect migratory birds, significant legislation was needed.
Addressing the plight of migratory birds would take skilled leadership, sound science, appreciation for the economic value of the resource, and, most important, public support. During the early 1900s, coalitions of citizens rallied to the conservation cause. For the first time, hunters, bird-watchers, women's clubs, and scientists joined forces to help save declining bird populations. These efforts soon began to bear fruit. In 1900, the Lacey Act was passed to reduce the commercial trade of wildlife across state lines. And in 1903, the first national wildlife refuge was established on Florida's Pelican Island to protect important rookeries for wading birds such as egrets and herons.
The turn of the 20th century brought growing global tensions and new threats to the world's natural resources. In North America, two camps of conservationists (defined as "utilitarians" and "preservationists") emerged. The two sides soon united in support of the wise and regulated use of wildlife resources. Motivated by scientific, ethical, and economic advances, they would ultimately establish a foundation for the sustainable use of natural resources. The early conservationists recognized not only the obvious aesthetic and recreational values of migratory birds, but also their value to agricultural production and the economy. Insectivorous birds played an important role in controlling pests that plagued the farming community, preventing an estimated $1 billion in crop losses at that time. Moreover, the conservation community recognized the need to build support for the idea that natural resources in general, and migratory birds in particular, were public resources that belonged to all North Americans. President Theodore Roosevelt characterized this awareness by stating, "It is evident that natural resources are not limited by the boundary lines which separate nations and that the need for conserving them upon this continent is as wide as the area upon which they exist."
But no international agreement was in place, and while there were growing attempts at the state level to regulate wildlife harvests and trade, most of these laws proved to be ineffective in achieving their goals. Clearly, some level of federal authority would be necessary to protect and manage migratory birds, but most states opposed any federal control of an international resource in the absence of a treaty. In 1913, following nearly a decade of lobbying by conservation leaders, the Migratory Bird Act was passed by Congress and signed into law by President Howard Taft. Sponsored by Representative John W. Weeks of Massachusetts and Senator George P. McLean of Connecticut, this legislation, commonly known as the Weeks-McLean Act, declared that migratory birds were not the property of any one state and included provisions for the creation of a federal migratory bird committee to develop harvest regulations. While the legislation had noble intentions, the law lacked enforcement power and its constitutionality was soon challenged in court.
Given the tenuous position of the Weeks-McLean Act, conservation leaders suggested that the United States negotiate a treaty with other nations to protect migratory birds across the continent. Timing for such an effort appeared to be good as Great Britain, Canada, and the United States shared concerns about the impact of the millinery trade on certain migratory bird populations. Drafting of the treaty began in 1914, but was postponed by the outbreak of World War I in Europe. The effort restarted in February 1916 after a year of delays. At the same time, a federal case challenging the constitutionality of the Weeks-McLean Act was making its way to the Supreme Court. Fortunately, the high court called for a delay in hearing the case until October of that year, thereby allowing treaty negotiations to continue.
Two scientists, Dr. C. Gordon Hewitt of Canada and Dr. E.W. Nelson of the United States, played a key role in advancing the treaty at this crucial time. Hewitt and Nelson were both pragmatists who worked together to help resolve disagreements over how migratory bird harvests should be regulated. Their solution was to allow an open season on most migratory game birds for a maximum of three and a half months between September 1 and March 10. Negotiations concluded successfully in late summer, and the U.S. Senate gave its consent to the treaty on August 29, 1916. President Woodrow Wilson and King George V of Great Britain (acting on behalf of Canada) independently signed the document, ultimately leading the two nations to formally exchange the instruments of ratification.
The exact terms of the Migratory Bird Treaty were not as important as the consistency and assurance of federal authority that it provided for the management of migratory birds across the United States and Canada. William Hornaday called the Migratory Bird Treaty "the greatest victory ever achieved for the birds of this continent or any other continent. It will give genuine joy to all farmers and forest owners, all friends of birds, now to be numbered by millions, and all true sportsmen."
While there was general agreement that the treaty was a significant accomplishment, it was not yet law, and new legislation was needed to ensure its implementation. Fortunately, public support was mobilized through the efforts of the National Association of Audubon Societies, Camp Fire Club of America, and Boone and Crockett Club. Prominent business leaders such as Henry Ford also publicly backed the treaty. Although the United States' entry into World War I put the legislation on hold, the campaign to muster public support continued. A unanimously supported resolution by the National Association of Game and Fish Commissioners declared that protection of migratory insectivorous birds should be considered an important war measure. This economic justification for a migratory bird law was timely and effective.
In Canada, there was little opposition to the treaty, and parliament quickly passed into law the Migratory Birds Convention Act (MBCA) on July 21, 1917. In the United States, Congress passed the Migratory Bird Treaty Act (MBTA) and President Wilson signed it into law on July 3, 1918, implementing the treaty and establishing clear federal authority over the management of migratory birds. The MBTA included a list of species protected by the treaty. The act also made it illegal for anyone to take, possess, import, export, transport, purchase, barter, or offer for sale any migratory bird, or the parts, nest, or eggs of such a bird, without a valid permit issued pursuant to federal regulations. In order to authorize the "taking" of waterfowl and other migratory birds, the law established the first federal hunting seasons and bag limits along with a permit system for scientific collections. In addition, it protected threatened species such as the wood duck, and banned market hunting, spring shooting, and the use of shotguns larger than 10-gauge.
The MBTA was not in place long before a predictable legal challenge ensued. In 1919, federal game warden Ray P. Holland arrested Missouri's attorney general, Frank McAllister, and several others for shooting waterfowl on a spring day. An ardent supporter of states' rights, McAllister believed that Missouri alone had the authority to regulate waterfowl hunting within its borders and sought to test the constitutionality of the MBTA. The arrests sparked a legal battle that eventually reached the Supreme Court. In Missouri v. Holland, the high court upheld the MBTA and the federal government's authority over the conservation of migratory birds across the United States.
The majority opinion, written by Justice Oliver Wendell Holmes, included the following statements about the economic importance of migratory birds: "Here a national interest of very nearly the first magnitude is involved... But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed." In Canada, the constitutionality of the MBCA was also challenged based on the presumption that a previous law had given the provinces control over wildlife policy. But the Canadian Supreme Court refused to hear the case, and the MBCA was upheld in Canada as well.
While neither law was perfect, both were extraordinary. For the first time, federal governments in the United States and Canada held primary responsibility for nationwide wildlife resource conservation. In subsequent decades, the United States signed treaties with other countries-including Mexico (1936), Japan (1972), and Russia (1976)-with which we share migratory birds. After each treaty was signed, the MBTA was amended to incorporate additional species identified for protection, and the language and restrictions were updated. More recently, U.S. migratory bird treaties with Canada and Mexico were amended in 1995 and 1997, respectively, to address the issue of subsistence and traditional use of birds by Native People in Alaska and Canada.
The Migratory Bird Treaty paved the way for a century of accomplishments dedicated to ensuring the sustainability of migratory bird populations and their habitats across this continent. From the Migratory Bird Hunting and Conservation Stamp Act and flyway management system to the North American Waterfowl Management Plan and North American Wetlands Conservation Act, a century of conservation success began with that quaint and simple treaty of 1916. As we celebrate the 100th anniversary of the Migratory Bird Treaty in North America, we can be proud of our shared conservation heritage and of the international agreements that are in place to protect migratory birds far into the future. Whether we appreciate birds for hunting, bird-watching, or subsistence, they provide us with great enjoyment, knowledge, and understanding of the natural world that surrounds us. The legacy of the Migratory Bird Treaty is the recognition that these magnificent birds are held in public trust and shared by all citizens. Our responsibility is to make sure that this legacy endures by conserving and managing migratory birds and their habitats for future generations to enjoy.
Paul Schmidt is chief conservation officer at DU national headquarters in Memphis and formerly served as U.S. Fish and Wildlife Service assistant director for migratory birds in Washington, D.C.