Additional Titles









Jurisdiction Questioned,
Part 1







By Attorney Lowell (Larry) Becraft, Jr.
July 1, 2004

In Part I, we examined the jurisdiction of Congress over the subject of fish and wildlife and that article noted the previous cases holding there was no federal power to control fish or wildlife under the express grants of power to Congress. This being the case, then where do we find the constitutional basis for the U.S. Fish and Wildlife Service? The answer is in treaties.

As noted in the McReady case discussed last month, the Supreme Court held that Congress has no authority over fish within the states. The U.S. Fisheries Commission was created as the result of the ratification of a treaty concerning the subject of fishing; see Manchester v. Massachusetts, 139 U.S. 240, 265 (1891). Our country has adopted fishing treaties with other countries and Native American tribes for a long time; see the treaty with Great Britain regarding fisheries, adopted in 1818 (Revised Stat. 297), and the treaty with Russia regarding navigation and fishing in the Pacific Ocean, ratified in 1824 (Revised Stat. 664). Of course, we have many newer ones.

A similar route was taken to acquire Congressional control over migratory birds and wildlife. In 1916, the United States and Great Britain, on behalf of Canada, adopted the Migratory Bird Treaty (39 Stat. 1702) and thereafter Congress in 1918 passed another Migratory Bird Act to implement the provisions of the treaty. As this occurred, federal law enforcement officials again started to enforce the new law.

Within Arkansas in 1919, a man named Thompson was arrested for shooting these protected migratory birds and this case was assigned to the same judge who had rendered the decision in the Shauver case discussed last month; see United States v. Thompson, 258 F.257, 263-64 (E.D.Ark. 1919.) Here, Thomspon raised the identical argument as Shauver which had previously proved successful before Judge Trieber. But, the federal prosecutor responded to this argument by noting the authority of this new treaty and this single change within the law dictated an entirely different result. In upholding the act and thus its application in Arkansas, Judge Trieber carefully analyzed the prior decisions of the Supreme Court which illustrated the operation of treaties and how they could apply federal power:

"To subject the treaty power to all the limitations of Congress in enacting the laws for the regulations of internal affairs would in effect prevent the exercise of many of the most important governmental functions of this nation, in its intercourse and relations with foreign nations, and for the protection of our citizens in foreign countries. The States of the Union may enact all laws necessary for their local affairs, not prohibited by the national or their own Constitution; but they are expressly prohibited from entering into treaties, alliances, or federations with other nations. If, therefore, the national government is also prohibited from exercising the treaty power, affecting matters which for internal purposes belong exclusively to the states, how can a citizen be protected in matters of that nature when they arise in foreign countries? (Note from Devvy: See article below as a portend of what's to come and how accurate Judge Trieber was in his concerns way back when.) Even in matters of a purely local nature,Congress, if the Constitution grants plenary powers over the subject, may exercise what is akin to the police power, a power ordinarily reserved to the states."

Judge Trieber concluded that this treaty provided Congress with a power of municipal legislation and the treaty and its implementing laws plainly operated within Arkansas. A different case originating in Missouri, United States v. Samples, 258 F. 479 (W.D.Mo. 1919), ultimately made it to the U.S. Supreme Court where an identical conclusion was reached; see Missouri v. Holland, 252 U.S. 416, 434 (1920), which held, "No doubt the great body of private relations usually fall within the control of the State, but a treaty may override it's power." See also United States. V. Selkirk, 258 F. 775 (S.D. Tex. 1919); United States v. Rockefeller, 260 F.346 (D.Mon. 1919); and United States v. Lumpkin, 276 F. 580 (N.D. Ca. 1921).

The Fish and Wildlife Service's constitutional authority thus arises from treaties. After the adoption of several fishing treaties, Congress created the U.S. Fisheries Commission; see 16 Stat. 594. When the migratory bird treaties were ratified, this agency apparently acquired authority over migratory birds. Later, the Convention on International Trade in Endangered Species of Wild Fauna and Flora was adopted in 1973; see 27 U.S.T. 1087. As a result of this treaty, on December 28, 1973, Congress enacted the "Endangered Species Act," 87 Stat. 884. Several cases have noted that the power to control endangered species arises from this treaty; see Palila v. Hawaii Dept. Of Land and Resources, 471 F.Supp. 985 (D. Haw. 1979); Utah v. Marsh, 740 F2d 799 (10th Cir. 1984); and Leslie Salt Co. V. United States, 896 F2d 354 (9th Cir. 1990).

The wetlands convention was ratified in 1986 and about 30 days later, Congress adopted the "Emergency Wetlands Resources Act of 1986," 100 Stat. 3582. It is clear the U.S. Fish and Wildlife Service's authority arises from these treaties and this agency thus has an "international" jurisdiction. The U.S. Fish and Wildlife Service is as much a treaty-based agency as the Great Lakes Fishery Commission (16 U.S.C. 931), and the Pacific Salmon Commission (16 U.S.C., 3631).

Part I, Jurisdiction Questioned

If this federal agency is based upon treaty, are there others? See Part III. Coming Soon

� 2004 Lowell Becraft - All Rights Reserved

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Lowell (Larry) Becraft, Jr., is a constitutional attorney based in Huntsville, Alabama, who specializes in criminal defense cases, primarily involving the federal income tax. His legal web site is: E-Mail:










To subject the treaty power to all the limitations of Congress in enacting the laws for the regulations of internal affairs would in effect prevent the exercise of many of the most important governmental functions of this nation...