Our Avian Psyche: Bird Law in America

Throughout American history, the federal government has passed laws to ameliorate the damage we’ve inflicted on animal populations. Legislation that deals with the protection of birds serves as a time capsule that unearths our relationship with the land, our own policies, and other nations. One act in particular, the Migratory Bird Treaty Act of 1918 (MBTA), was amended multiple times throughout the 20th century and in each new statute illustrates the US government’s priorities and structural deficiencies.

Migratory Bird Protection - Hunting

By the turn of the 20th century, the hunting and selling of migratory birds reached a level of excess where populations were visibly depleted. In response to this damage, The Lacey Act (1900) and the Weeks-McLean Act (1913) lay the ideological groundwork for the regulation of rare and exotic birds. In 1918, Woodrow Wilson’s administration worked with Canada to enact the Migratory Bird Treaty Act, thereby protecting birds “of great value as a source of food — as well as to agricultural crops.” The first versions of the legislation were utilitarian and treated birds as a commodity. Farmers could breed migratory birds for food supply, and the Fish and Wildlife Service would later grant hunting permits to override the treaty. Native Americans were permitted to use eagle feathers as headdress in religious ceremony.

The law allowed federal government to seize these migratory birds and “dispose of them as directed by the courts,” stirring conflict between state and federal power in a Supreme Court case. The state of Missouri sued on grounds that the regulation of migratory birds across state lines was unconstitutional. Missouri v. Holland ruled in the favor of the federal government, citing the “supreme law of the land” over the state, in Article VI, clause 2.

Later statutes of the MBTA added treaties between the US and Mexico, as well as Japan. At the height of the Cold War, President Nixon entered a stage of “environmental detente” to ease tensions between the US and Soviet Union. In 1976, the Nixon administration amended a US-Soviet statute to the Migratory Bird Treaty Act, which protected migratory birds and their associated habitats. The Soviet list of protected birds was outlined in terms of families rather than species, which broadened the protective scope to include animals that entered another country in between the US and USSR. You can’t help but wonder if Brezhnev chit-chatted about his favorite birds during Nixon’s 1972 Moscow visit.

Nixon Brezhnev in Nature

The Migratory Bird Treaty Act followed the federal government into the 21st century. In his last days in office, President Clinton ordered the Department of Defense to consider bird conservation as part of their “regular decision-making”. Nonetheless, the US conducted military training on the Northern Mariana Islands, an area protected by the Fish & Wildlife service. An audit concluded that the explosive and artillery training killed birds within the purview of MBTA. The Navy filed a request for modification. This prompted the Bush administration to rewrite Section 2, exempting the incidental “taking” of birds during military-readiness operations, prioritizing defense over environmentalism. Congress expressed concern that the edit would set a negative precedent for other nations involved in the treaty, namely Japan and Russia. The lawmakers who altered the bill determined that the new bird law happened to be consistent with all international treaty obligations.

Northern Mariana Islands Military and Birds

The endangered bird is a symbol around which the United States sorts out its legislative shortcomings, on both the domestic and international front. We’ve amended the Migratory Bird Treaty Act as recently as 2015, to protect birds from windmills and cellphone towers. This single act persists for just under a century, as the bird builds a nest in our American psyche.

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