subject to its laws as if they were killed there.39/ Thus, whereas Geer had upheld the authority of a state to prohibit the export of game lawfully killed within the state, the Lacey Act sanctioned a state's prohibition of the import of game lawfully killed in other states. Accordingly, in the view of some early courts, the Act was tantamount to an abdication of federal powers affirmatively to regulate interstate commerce.40/ Other provisions of the Lacey Act had implications for the scope of federal power, though their importance was not much noted at the time. One such provision prohibited the importation of certain named animals, including starlings and English sparrows, and "such other birds or animals as the Secretary of Agriculture may declare injurious to the interest of agriculture or horticulture."41/ The source of this exercise of federal authority, the congressional power over foreign commerce, has never been seriously challenged.42/ Finally, in direct response to the decimation of the passenger pigeon and the depletion of a number of other birds, the Lacey Act authorized the Secretary of Agriculture to adopt all measures necessary for the "preservation, distribution, introduction, and restoration of game birds and other wild birds," subject, however, to the laws of the various states and territor 39/ 40/ 41/ Ch. 553, §5, 31 Stat. 188 (1900) (current version at 16 See, e.g., State v. Shattuck, 96 Minn. 45, 104 N.W. 719 42/ "The Congress shall have power. . . To regulate Commerce cl. 3. ies.43/ In this manner, the federal government began to inch slowly toward affirmative wildlife management. The cautious approach embodied in the Lacey Act appeared to be eminently justified when, twelve years later, the Supreme Court decided The Abby Dodge.44/ In that action, the United States brought suit against a vessel for its alleged violation of a federal statute prohibiting the taking of sponges from the Gulf of Mexico or the Straits of Florida by means of diving apparatus.45/ The vessel owner contended that the sponges were taken in Florida's territorial waters and that if the federal statute applied to such waters, it was unconstitutional because the taking of sponges there was a matter "exclusively within the authority of the states." Chief Justice White, the author of the Geer opinion sixteen years earlier, agreed. Although he upheld the validity of the federal statute, he did so by construing it to apply only beyond Florida's territorial waters. In explanation, he offered the following rationale: In view of the clear distinction 43/ 44/ 451 Ch. 553, §1, 31 Stat. 187 (1900) (current version at 16 223 U.S. 166 (1912). Act of June 20, 1906, ch. 3442, 34 Stat. 313 (repealed not to embrace that which was not Thus, Justice White's Abby Dodge decision was the first 1. The Federal Treaty-Making Power With the Abby Dodge decision only a year old, the outlook was hardly auspicious when Congress enacted the Migratory Bird Act of 1913.47/ Actually a part of the Appropriations Act for the Department of Agriculture, it declared all migratory game and insectivorous birds "to be within the custody and protection of the government of the United States," and prohibited their hunting except pursuant to federal regulations. The constitutionality of the 1913 Act was considered in two cases in the federal district courts, United States v. Shauver, 48/ and United States v. McCullagh,49/ and in each case it was found wanting. It appears that the government made a rather feeble effort to support its law on the basis that the migratory character of the birds made them subject to its power to regulate interstate commerce. Both courts rejected the government's argument as foreclosed by Geer. The government made a somewhat more vigorous claim that the law was supported by the Property Clause of the Constitution, which authorized the Congress to make all "needful Rules and Regulations" concerning the property of the United States.50/ That argument was likewise rejected on the 46/ 223 U.S. at 175. 471 48/ 49/ Act of March 4, 1913, ch. 145, 37 Stat. 828 (repealed 1918). 214 F. 154 (E.D. Ark. 1914), appeal dismissed, 248 U.S. 594 (1919). 221 F. 288 (D. Kan. 1915). 50/ "The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or basis that Geer had placed "property" in game in the states. The Shauver case was appealed to the Supreme Court and argued twice, initially before a bench of only six Justices. Apparently fearful of an adverse decision, the Department of Agriculture urged the Department of State to conclude a treaty with Great Britain (on behalf of Canada) for the protection of migratory birds.51/ The treaty was signed on August 16, 1916.52/ After passage in 1918 of implementing legislation, the Migratory Bird Treaty Act, 53/ the Supreme Court dismissed the government's appeal in Shauver, and thus never decided the constitutionality of the 1913 Act. The constitutionality of the 1918 Act was very soon before the Supreme Court when the state of Missouri filed a bill in equity seeking to restrain one Ray Holland, a United States Game Warden, from enforcing the Act within the state. The United States contended that the Treaty and its implementing legislation took precedence over any conflicting state power of regulation by virtue of the Constitution's Supremacy Clause.54/ The Court's landmark decision in Missouri 51/ 52/ 53/ 541 other Property belonging to the United States Comment, Treaty-Making Power as Support for Federal Legis- Convention for the Protection of Migratory Birds, Aug. 16, Ch. 128, 40 Stat. 755 (1918) (current version at 16 U.S.C. "This Constitution, and the Laws of the United States v. Holland dealt a stunning blow to those who had felt the state ownership doctrine was a bar to federal wildlife regulation.55/ Justice Oliver Wendell Holmes, writing for a seven member majority which included Justice Louis Brandeis and even Chief Justice White, disposed of Missouri's ownership argument in the following terms: The State . . . founds its Missouri v. Holland established beyond question the supremacy of the federal treaty-making power as a source of authority for federal wildlife requlation.57/ More importantly, it forcefully rejected the 57/ Id. at 434-35. Coggins & Hensley, Constitutional Limits on Federal Power |