36 PROBLEMS IN WILD LIFE CONSERVATION 



Thus, a conflict was inevitable between the authority of 

 the national government to make treaties and the authority 

 of the states arising from two sources, first, their well- 

 recognized right of control because of ownership of animals 

 ferae naturae found within their borders 10 and, second, be- 

 cause of the tenth amendment to the constitution which 

 reserved to the states all the powers not granted in the 

 national government. 



Congress had previously attempted to deal with the situa- 

 tion by means of an ordinary statute. In March 1913 it had 

 passed the Weeks-McLean Migratory Bird Act 11 declaring 

 migratory birds within " the custody and protection of the 

 United States " and prohibiting their destruction contrary 

 to regulations which the Department of Agriculture was 

 authorized to establish. The Department proceeded to set 

 up such regulations, and in attempting to enforce them 

 found the constitutionality of the entire act brought into 

 question. 



Two state supreme courts, Maine and Kansas. 21 and two 

 federal district courts 13 during 1913-15 held the statute 

 unconstitutional. An appeal from one of the federal de- 

 cisions, the Shauver Case, was carried to the United States 

 Supreme Court where it was twice argued. On the first 

 argument before a bench of only six, there was evidently a 

 division of opinion making a decision favorable to the act 

 impossible, or else the case seemed sufficiently important to 

 induce the court to order it re-argued before a full bench. 



10 Cf. p. 54. 



11 37 Stat. L. 847 ; in essential features same as the Shiras bill of 1904. 

 13 State v. Sawyer, 113 Me. 458, 94 Atl. 886 ( 1915) ; State v. McCullough, 



96 Kan. 786, 153 Pac. 557 (1915). 



13 United States v. Shauver, 214 Fed. 154 (1914); United States v. 

 McCullough, 221 Fed. 288 (1915). 



