waters of that State, which power was upheld by the Court. Manchester y. Massachusetts, 139 U.S. 240 

 (1891), is cited as authority for the State of Massachusetts to control and regulate the catching offish 

 by individuals within the bays of that State. The authority of the State to control and regulate its own 

 citizens in their exploitation of resources beyond the territorial sea, in the absence of Federal legislation, 

 was confirmed in Skiriotes v. Florida, 313 U.S. 69 (1941), as was the authority of the State to control 

 and regulate such exploitation by both citizens and noncitizens of the State while in the territorial sea 

 boundaries of the State (Toomer v. Witsell, supra). For the effective enforcement of hunting and fishing 

 restrictions, the State may forbid the possession within its borders of certain gear, such as nets, traps, 

 and seines (Miller v. McLaughlin, 281 U.S. 261, 264 (1930)). The State may also forbid the 

 transportation outside the State of game killed therein (Geer v. Connecticut, supra), and to make illegal 

 the possession, during the closed season, of game imported from abroad (Silz v. Hesterberg, 211 U.S. 31 

 (1908)). 



C. Treaties and Regulation 



"No doubt it is true that as between a State and its inhabitants the State may regulate the killing and 

 sale of [migratory] birds, but it does not foUow that its authority is exclusive of paramount powers."^ 

 It is well settled in American law that as between a State and the Federal Government, laws passed 

 pursuant to the valid exercise of the treaty-making power of the Federal Government^ are the supreme 

 law of the land. This was expressly confirmed in the landmark case oi Missouri v. Holland, which held 

 that the Migratory Bird Treaty'" and the Migratory Bird Treaty Act' ' passed pursuant thereto were 

 supreme law of the land, supervening State laws and creating rights superior to those of the States or 

 their citizens. 



D. Commerce Clause and Regulation 



However, before the enactment of the Migratory Bird Treaty, there was doubt and uncertainty as to 

 the power of the Congress to deal with the hunting and killin g of game birds. In 1913, the Congress 

 passed a law deeming migratory birds to be "within the custody and protection of the government of the 

 United States," and asserted the authority of the Department of Agriculture to adopt suitable 

 regulations to prescribe closed seasons and to prohibit the killing of migratory birds.' ^ This Act was first 

 contested in United States v. Shauver, 214 Fed. 154 (D.C.E.D. Ark., 1914). On initial hearing, counsel 

 for the Government did not contend that power to enact the legislation was under the commerce clause, 

 but under the power to make regulations respecting the property of the United States.'^ Citing 

 numerous cases to the effect that "animals /erae naturae ... are owned by the States, not as proprietors, 

 but in their sovereign capacity as the representatives and for the benefit of all their people in common," 

 the court stated that it was "unable to find any provision in the Constitution authorizing Congress, 

 either expressly or by necessary impUcation, to protect or regulate the shooting of migratory wild game 

 when in a state," and declared the Act unconstitutional. On rehearing, the court dismissed the case after 

 counsel for the Government contended that the Act was authorized by the commerce clause. 



To similar effect was United States v. McCullagh, 221 Fed. 288 (D.C. Kan., 1915), decided nine 

 months after the Shauver case, and testing the same Act. Holding the Act unconstitutional, the court 

 stated, 221 Fed. at 292: 



*Mi. Justice Holmes in Missouri v. Holland, 252 U.S. 416, 434 (1920). 



'U.S. Const., art. I, §8, cl. 3. 



'°39 Stat. 1702 (Dec. 8, 1916). 



"Act of July 3, 1918, 40 Stat. 755, as amended, 49 Stat. 1556 (June 20, 1936), 16 U.S.C. 703-711. 



'^Act of March 4, 1913, 37 Stat. 828. 



Art. 4, §3, cl. 2, "The Congress shall have power to dispose of and make all needfiil rules and regulations 

 respecting the territory or other property belonging to the United States ..." 



VlI-72 



