Thursday, August 18, 2016

100 years ago, William Temple Hornaday and the Migratory Bird Treaty

One hundred years ago this week the United States and Great Britain ratified the Migratory Bird Treaty, which extended protection of migratory birds from the Rio Grande to the arctic. William Temple Hornaday was instrumental at several key points on the road to this landmark act of international conservation.

His first important contribution was to call a dinner of key conservationists in September 1912 to discuss the stalled Weeks-McLean bill. Led by John Burnham of the American Game Protection Association (AGPA), sportsmen lobbied for a bill to protect migratory game birds. In other words, their proposed legislation would protect only birds that hunters wanted to shoot. Hornaday was critical of this approach. For starters, he felt that the bill was too narrow in focus. He advocated a bill that protected all migratory birds, including non-game song birds. Moreover, he did not trust Burnham who represented an organization that was funded by the gun and ammunition manufacturers. This was more than a conflict of interest. Hornaday believed Burnham and his overlords posioned the very soul of the conservation movement and threatened the future of American wildlife. Because of his zeal, Honraday and Burnham had several public and acrimonious skirmishes in the the last couple of years -- indeed, they would spend the next two decades in a protracted knock-out, drag-out fight that led to a lawsuit . At the September dinner Hornaday and T. Gilbert Pearson advocated the expansion of the bill to include all migratory birds. They conveniently waited to vote on it until after Burnham had left. Those who remained voted to accept their revision and the bill was recast to protect all migratory birds.

Hornaday lobbied hard throughout the fall of 1912 for the bill, and his greatest contribution was his seminal book, Our Vanishing Wildlife. Unique in the early conservation canon as a work dedicated exclusively to wildlife conservation, Our Vanishing Wildlife was written in a strident moral tone, full of exclamation points and sarcasm, and with the full-throttle vigor of the most successful muckrakers. Hornaday shined a bright light on the "army of destruction" as he called, which included the game hogs and market hunters, but also the sportsmen whom Burnham represented at the AGPA. Our Vanishing Wildlife had one significant drawback, however. It used racism to argue for migratory bird protection. Southern Congressmen opposed the Weeks-McLean Act because it would extend federal power into an area that had always been reserved to the states. To counter this, Hornaday depicted African Americans, Native Americans, and Italian immigrants in the worse possible light as game hogs extraordinaire. Photographs showing groups of southern blacks walking armed across a field was clearly designed to provoke the worst fears of the Jim Crow era in the hope that the Southern Congressmen would support the bill. In the end, it was a parliamentary maneuver that secured protection of migratory birds. The measure was tucked in an appropriations bill, and signed by President William Howard Taft in the closing minutes of his administration in 1913. Taft later commented that he would not have signed the bill had he known the migratory bird protection measure had been added to it.

Not surprisingly, conservationists were worried about the future of migratory bird protection. It passed Congress through legislative sleight-of-hand and the president who signed it stated he would not have done so had he known that the migratory bird protection provision was buried in the bill. Congress was already backing away by not providing the necessary funds for implementation or hiring the required game wardens. A constitutional challenge seemed imminent, and conservationists  feared that the conservative United States Supreme Court would strike down the measure. As an alternative to amending the constitution Senator Elihu Root of New York recommended a treaty as a way to ensure constitutionality of migratory bird protection. Under article VI, a treaty becomes the supreme law of the land. This approach made great sense because international borders made no more difference to migratory birds than did state boundaries.

The Wilson administration was cool to the idea and had to be pushed into negotiations. Conservationists suggested approaching Mexico, but political instability and revolution eliminated that possibility. By necessity, the United States turned to its northern neighbor, Canada. Great Britain managed the foreign affairs of Canada. With war waging in Europe, a treaty about migratory birds had low priority. If anything pushed Britain to consider the treatyl it was simply to appease the United States. Still negotiations dragged on.

Hornaday grew impatient with the slow progress of the treaty. On February 12, 1916 he walked into the United States State Department in Washington and demanded to know the physical location of the treaty. The clerk found a receipt that he had been delivered to the British embassy the year before. Hornaday proceeded to the British embassy. The treaty, he wrote to Theodore Palmer of the Biological Survey (forerunner of the Fish and Wildlife Service), "by an accident had been filed without any action, and forgotten!" Although Hornaday had a penchant for publicly exposing and embarrassing rivals, he chose not to publicize the bureaucratic mishap at the embassy. This was not the time to embarrass a treaty partner! "Of course you will immediately recognize the necessity of saying nothing whatever about the accident at the embassy," Hornaday added to Palmer.

Hornaday's visit to the embassy got the treaty back on track. Six months later both powers ratified it, although it took another two years for Congress to pass the necessary enabling legislation. In 1920 the United States Supreme Court upheld the Migratory Bird Treaty Act (1918) in the case of Missouri vs. Holland, thus preserving one of the most important pieces of wildlife protection in American history. In 1936 Mexico and the United States signed a migratory bird treaty.  

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