no SALMON GEAR LIMITATION 



in migratory birds was sufficient to invalidate federal laws passed 

 pursuant to treaty with Canada to regulate the taking of these birds. 

 In that case, Missouri v. Holland^^^ decided in 1920, he said: 



"No doubt it is true that, as between a state and its inhabitants, the 

 state may regulate the killing and sale of such birds, but it does not follow 

 that its authority is exclusive of paramount powers. To put the claim of 

 the state upon title is to lean upon a slender reed. Wild birds are not in 

 the possession of anyone; and possession is the beginning of ownership." 

 [Emphasis supplied. J^^"^ 



In a much later case, Takahashi v. Fish and Game Commission, ^"^"^ 

 decided in 1948, the United States Supreme Court held that a Cali- 

 fornia restriction of the offshore fishery which excluded aliens in- 

 eligible to citizenship violated the Equal Protection Clause of the 

 Fourteenth Amendment. This holding was in the face of an argu- 

 ment by the State of California that it owned the fish and therefore 

 could dispense its bounty to the persons for whom it held them, 

 namely, its own citizens. The court disagreed, quoting Mr. Justice 

 Holmes from Missouri v. Holland and adding: 



"We think the same statement is equally applicable here. To whatever 

 extent the fish in the three-mile belt off California may be 'capable of 

 ownership' by California, we think that 'ownership' is inadequate to justify 

 California in excluding any or all aliens who are lawful residents of the 

 State from making a living by fishing in the ocean off its shores while 

 permitting others to do so."^^^ 



It might be noted that the Washington statutes contain a similar 

 restriction, excluding all aliens from commercial fishing. ^^^ This 

 statute's forerunner was upheld as against challenge on equal pro- 

 tection grounds in a case brought in the federal court but not 

 reaching the Supreme Court of the United Stales. In that case, 

 Lubetich v. Pollock ^"^^ decided in 1925 by the District Court for 

 the Western District of Washington, the court relied entirely upon 

 the ownership concept to justify the discrimination. It should be 

 obvious that since the decision of the United States Supreme Court in 

 the Takahashi case, the Lubetich decision is no longer good law, and 

 Washington's statute would very likely succumb under constitutional 

 attack. 



153. 252U. S. 416 (1920). 



154. /^. at 434. 



155. 334U. S. 410 (1948). 



156. Id. at 421. 



1 57. Revised Code of W^ashington, 75.28.020. 



158. 6 F. 2d 237 (W. D. Wash. 1925). 



