The Pragmatic Migratory Bird Treaty Act: Protecting “Property”

Hye-Jong Linda Lee
Boston College Law School
Publication Date: 

Abstract: In 1916, the United States of America entered into a treaty with the United Kingdom, acting on behalf of Canada, to protect migratory birds from unrestrained killing. Two years later, Congress enacted the Migratory Bird Treaty Act (MBTA) to give effect to this convention. The United States subsequently entered into similar agreements with Mexico in 1936, Japan in 1972, and the Soviet Union in 1976, which were thereafter incorporated into the provisions of the MBTA. The MBTA’s prohibition against pursuing, hunting, taking, capturing, or killing any migratory bird, or any part, nest, or egg of such birds, however, is not motivated by the desire to protect human property interests. This Note explores America’s attachment to wildlife as property under the terms of the conventions, the statutory language, the history, and the caselaw pertaining to the MBTA, with specific focus on the curious distinction between wild and captive-bred mallard ducks.

Wild beasts and birds are by right not the property merely of the people today, but the property of the unborn generations, whose belongings we have no right to squander.1

—Theodore Roosevelt