79–006 

1Protection of Migratory Birds Treaty, Library of Congress https://www.loc.gov/law/help/ustreaties/bevans/b-gb-ust000012-0375.pdf. 

115TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 115–675 

TO AMEND THE MIGRATORY BIRD TREATY ACT TO CLARIFY THE TREATMENT OF AUTHENTIC ALASKA NATIVE ARTICLES OF HANDICRAFT CONTAINING NONEDIBLE MIGRATORY BIRD PARTS, AND FOR OTHER PURPOSES 

MAY 15, 2018.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. BISHOP of Utah, from the Committee on Natural Resources, 

submitted the following 

R E P O R T 

together with 

ADDITIONAL VIEWS 

[To accompany H.R. 4069] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Natural Resources, to whom was referred the 

bill (H.R. 4069) to amend the Migratory Bird Treaty Act to clarify 

the treatment of authentic Alaska Native articles of handicraft containing nonedible migratory bird parts, and for other purposes, 

having considered the same, report favorably thereon without 

amendment and recommend that the bill do pass. 

PURPOSE OF THE BILL

The purpose of H.R. 4069 is to amend the Migratory Bird Treaty 

Act to clarify the treatment of authentic Alaska Native articles of 

handicraft containing nonedible migratory bird parts. 

BACKGROUND AND NEED FOR LEGISLATION

In 1916, the United States and Great Britain (for Canada) signed 

the Convention for the Protection of Migratory Birds.1 The goal of 

this agreement was to establish an international framework for the 

protection and conservation of migratory birds. 

The agreement also established the federal government’s authority to manage migratory birds. Under the Migratory Bird Treaty, 

2 

2 U.S. Fish and Wildlife Service, Mexico-United States Convention for the Protection of Migratory Birds and Game Mammals https://www.fws.gov/migratorybirds/pdf/Treaties-Legislation/ 

Treaty-Mexico.pdf. 3 U.S. Fish and Wildlife Service, Convention Between the Government of the United States 

of America and the Government of Japan for the Protection of Migratory Birds and Birds in 

Danger of Extinction, and their Environment https://www.fws.gov/le/pdf/ 

MigBirdTreatyJapan.pdf. 4 U.S. Fish and Wildlife Service, Convention of Migratory Birds and their Environment, Between the United States of American and the Union of Soviet Socialist Republics Concerning 

the Conservation of Migratory Birds https://www.fws.gov/le/pdf/MigBirdTreatyRussia.pdf. 5 16 U.S.C. §§ 703–712. 

6 U.S. Fish and Wildlife Service, Migratory Bird Treaty Act Protect Species https:// 

www.fws.gov/birds/management/managed-species/migratory-bird-treaty-act-protected-species.php. 7 Ibid 3. 

8 Ibid 4. 

9 U.S. Fish and Wildlife Service, Protocol Amending the 1916 Convention for the Protection 

of Migratory Birds, Canada https://www.fws.gov/le/pdf/MigBirdTreatyCanada.pdf. 10 Ibid 2. 11 Ibid 9. 12 Ibid 7. 

unless permitted by regulation, it is unlawful at any time to pursue, hunt, take, capture, kill, possess, offer for sale, sell, offer to 

purchase, purchase, deliver for shipment, export, or import any migratory bird, any part, nest, or egg of such bird protected under the 

Convention. Migratory bird treaties were also implemented with 

Mexico in 1936,2 Japan in 1972,3 and Russia in 1976.4 Congress 

implemented the provisions of the original treaty with the enactment of the Migratory Bird Treaty Act of 1918.5

There are over 900 avian species protected by the Migratory Bird 

Treaty Act.6 Under the treaty, the term migratory bird includes all 

wild species of crows, ducks, falcons, geese, hawks, snipes, 

woodcocks, mourning doves, and white-winged doves. The Fish and 

Wildlife Service (FWS) regulates most aspects of the taking, possession, transportation, sale, purchase, barter, export, and import of 

migratory birds. The FWS has promulgated regulations containing 

restrictions on the taking of migratory birds, including what species can be hunted, the length of hunting seasons, bag limits, and 

the use of live decoys or other techniques to hunt migratory birds. 

While the bilateral treaties with Japan 7 and Russia 8 recognized 

the legitimate subsistence needs of indigenous people, the 1916 and 

1936 treaties with Canada 9 and Mexico 10 did not. As a result, federal courts have prevented the implementation of any subsistence 

rights, holding that the Migratory Bird Treaty Act requires the federal government to follow the most restrictive provisions of any of 

the four international agreements. 

Under the 1916 Convention with Canada there is a closed season 

from March 10 to September 1 during which no hunting is permitted except in extremely limited circumstances.11 The 1936 Convention with Mexico established a similar closed season for ducks. 

In Alaska, migratory birds have left large areas of northern, western and interior regions of the State by mid-September and in 

these areas, they generally do not return before March 10. Consequently, much of the traditional harvest of migratory birds, 

which has occurred for thousands of years in rural Alaska, has occurred during the closed portion of the year. 

An effort to update the international treaties was initiated in the 

1970s and culminated with the signing of the Protocol between the 

United States and Canada on December 14, 1995,12 and the Protocol between the United States and Mexico signed on May 5, 1997. 

3 

13 Ibid 7. 14 14 U.S. Fish and Wildlife Service, Protocol Amending the 1916 Convention for the Protection of Migratory Birds, Mexico https://www.congress.gov/105/cdoc/tdoc26/CDOC-105tdoc26.pdf. 15 50 CFR 92.6 16 Anchorage Daily News, Alaska Native artist told selling feathered art violates law, Mike 

Duncan, September 29, 2012 https://www.adn.com/our-alaska/article/alaska-native-artist-toldselling-feathered-art-violates-laws/2012/10/16/. 17 Alaska Federation of Natives, 2012 Annual Convention Resolutions http:// 

www.nativefederation.org/wp-content/uploads/2012/10/2012-afn-convention-resolutions.pdf. 18Federal Register, Migratory Bird Subsistence Harvest in Alaska; Use of Inedible Bird Parts 

in Authentic Alaska Native Handicrafts for Sale, A rule by the U.S. Fish and Wildlife Service, 

August 24, 2017. https://www.federalregister.gov/documents/2017/07/24/2017-15465/migratorybird-subsistence-harvest-in-alaska-use-of-inedible-bird-parts-in-authentic-alaska-native. 

The fundamental goal of these Protocols was to allow aboriginal 

and indigenous peoples to legally hunt protected migratory birds 

for subsistence and traditional uses in Alaska and Canada. On October 23, 1997, the United States Senate approved the Protocols 

amending the Migratory Bird treaties with Canada 13 and Mexico.14

Regrettably, when implementing the treaty language, Congress 

failed to clarify that non-edible parts of the harvest migratory bird 

could be sold in commercial products. FWS followed by promulgating regulations prohibiting the sale or purchase of migratory 

bird parts, including feathers and parts of birds taken for subsistence.15 As a result, in 2012, a native Alaskan carver was fined 

$2,000 for violating the Migratory Bird Treaty Act for using feathers in his handicraft products.16

In 2012, the Alaska Federation of Natives adopted a resolution 

urging the State of Alaska and FWS to revise its existing regulations to allow Alaskan natives to sell traditional handicrafts containing feathers or parts of migratory birds.17 The Alaskan Federation of Natives, Sealaska Heritage Institute, and the Alaska Migratory Bird Co-Management Council all support this legislative fix. 

On August 23, 2017, a FWS final rule went into effect which 

amended the permanent migratory bird subsistence-harvest regulations in Alaska.18 This rule enabled Alaska Natives to sell authentic Native articles of handicraft or clothing that contain inedible byproducts from migratory birds that were taken for food during the 

Alaska migratory bird subsistence-harvest season. 

H.R. 4069 would amend the Migratory Bird Treaty Act to exempt 

certain Alaskan Native articles from the prohibitions on the sale of 

items containing nonedible migratory bird parts. The bill defines 

the term Alaskan Native to include a member of any Indian tribe 

that is based in the State of Alaska. It stipulates that authentic 

Alaskan native articles of handicrafts include beading, carving, 

drawing, lacing, painting, sewing, stitching and weaving or any 

combination thereof. Finally, the exemption will not apply to any 

handicraft containing any part of a migratory bird that was taken 

in a wasteful manner. 

COMMITTEE ACTION

H.R. 4069 was introduced on October 12, 2017, by Congressman 

Don Young (R–AK). The bill was referred to the Committee on Natural Resources, and within the Committee to the Subcommittee on 

Federal Lands. On April 18, 2018, the Natural Resources Committee met to consider the bill. The Subcommittee was discharged 

by unanimous consent. No amendments were offered and the bill 

4 

was ordered favorably reported to the House of Representatives by 

unanimous consent. 

COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of rule XIII 

of the Rules of the House of Representatives, the Committee on 

Natural Resources’ oversight findings and recommendations are reflected in the body of this report. 

COMPLIANCE WITH HOUSE RULE XIII AND CONGRESSIONAL BUDGET

ACT

1. Cost of Legislation and the Congressional Budget Act. With respect to the requirements of clause 3(c)(2) and (3) of rule XIII of 

the Rules of the House of Representatives and sections 308(a) and 

402 of the Congressional Budget Act of 1974, the Committee has 

received the following estimate for the bill from the Director of the 

Congressional Budget Office: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, May 9, 2018. 

Hon. ROB BISHOP, 

Chairman, Committee on Natural Resources, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 4069, a bill to amend the 

Migratory Bird Treaty Act to clarify the treatment of authentic 

Alaska Native articles of handicraft containing nonedible migratory 

bird parts, and for other purposes. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Jeff LaFave. 

Sincerely, 

KEITH HALL, Director. 

Enclosure. 

H.R. 4069—A bill to amend the Migratory Bird Treaty Act to clarify 

the treatment of authentic Alaska Native articles of handicraft 

containing nonedible migratory bird parts, and for other purposes 

H.R. 4069 would amend the Migratory Bird Treaty Act to allow 

Alaska Natives to make and sell traditional handicrafts such as 

masks, jewelry, clothing, and hunting equipment that are made 

from parts of migratory birds, particularly feathers. CBO estimates 

that implementing the bill would have no significant effect on the 

federal budget. 

Enacting H.R. 4069 could reduce revenues and associated direct 

spending from civil and criminal penalties; therefore, pay-as-you-go 

procedures apply. However, CBO estimates that any such effects 

would be negligible. 

CBO estimates that enacting H.R. 4069 would not increase net 

direct spending or significantly increase on-budget deficits in any 

of the four consecutive 10-year periods beginning in 2029. 

5 

H.R. 4069 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act. 

The CBO staff contact for this estimate is Jeff LaFave. The estimate was reviewed by H. Samuel Papenfuss, Deputy Assistant Director for Budget Analysis. 

2. General Performance Goals and Objectives. As required by 

clause 3(c)(4) of rule XIII, the general performance goal or objective 

of this bill is to amend the Migratory Bird Treaty Act to clarify the 

treatment of authentic Alaska Native articles of handicraft containing nonedible migratory bird parts. 

EARMARK STATEMENT

This bill does not contain any Congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined under clause 9(e), 

9(f), and 9(g) of rule XXI of the Rules of the House of Representatives. 

COMPLIANCE WITH PUBLIC LAW 104–4 

This bill contains no unfunded mandates. 

COMPLIANCE WITH H. RES. 5 

Directed Rule Making. This bill does not contain any directed 

rule makings. 

Duplication of Existing Programs. This bill does not establish or 

reauthorize a program of the federal government known to be duplicative of another program. Such program was not included in 

any report from the Government Accountability Office to Congress 

pursuant to section 21 of Public Law 111–139 or identified in the 

most recent Catalog of Federal Domestic Assistance published pursuant to the Federal Program Information Act (Public Law 95–220, 

as amended by Public Law 98–169) as relating to other programs. 

PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

This bill is not intended to preempt any State, local or tribal law. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (new matter is printed in italic 

and existing law in which no change is proposed is shown in 

roman): 

MIGRATORY BIRD TREATY ACT 

* * * * * * * 

SEC. 2. (a) IN GENERAL.—Unless and except as permitted by regulations made as hereinafter provided, it shall be unlawful at any 

time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, 

sell, offer to barter, barter, offer to purchase, purchase, deliver for 

shipment, ship, export, import, cause to be shipped, exported, or 

imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transVerDate Sep 11 2014 04:46 May 17, 2018 Jkt 079006 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 E:\HR\OC\HR675.XXX HR675
6 

portation, carriage, or export, any migratory bird, any part, nest, 

or egg of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such 

bird or any part, nest, or egg thereof, included in the terms of the 

conventions between the United States and Great Britain for the 

protection of migratory birds concluded August 16, 1916, the 

United States and the United Mexican States for the protection of 

migratory birds and game mammals concluded February 7, 1936, 

the United States and the Government of Japan for the protection 

of migratory birds and birds in danger of extinction, and their environment concluded March 4, 1972, and the convention between the 

United States and the Union of Soviet Socialist Republics for the 

conservation of migratory birds and their environments concluded 

November 19, 1976. 

(b) LIMITATION ON APPLICATION TO INTRODUCED SPECIES.— 

(1) IN GENERAL.—This Act applies only to migratory bird species that are native to the United States or its territories. 

(2) NATIVE TO THE UNITED STATES DEFINED.— 

(A) IN GENERAL.—Subject to subparagraph (B), in this 

subsection the term ‘‘native to the United States or its territories’’ means occurring in the United States or its territories as the result of natural biological or ecological processes. 

(B) TREATMENT OF INTRODUCED SPECIES.—For purposes 

of paragraph (1), a migratory bird species that occurs in 

the United States or its territories solely as a result of intentional or unintentional human-assisted introduction 

shall not be considered native to the United States or its 

territories unless— 

(i) it was native to the United States or its territories and extant in 1918; 

(ii) it was extirpated after 1918 throughout its range 

in the United States and its territories; and 

(iii) after such extirpation, it was reintroduced in 

the United States or its territories as a part of a program carried out by a Federal agency. 

(c) CLARIFICATION FOR AUTHENTIC ALASKA NATIVE ARTICLES OF

HANDICRAFT.— 

(1) DEFINITIONS.—In this subsection: 

(A) ALASKA NATIVE.—The term ‘‘Alaska Native’’ means a 

member of any Indian tribe (as defined in section 4 of the 

Indian Self-Determination and Education Assistance Act 

(25 U.S.C. 5304)) that is based in the State of Alaska. 

(B) AUTHENTIC ALASKA NATIVE ARTICLE OF HANDICRAFT.— 

(i) IN GENERAL.—The term ‘‘authentic Alaska Native 

article of handicraft’’ means any item that is— 

(I) composed, wholly or in a significant respect, 

of natural materials; and 

(II) produced, decorated, or fashioned by hand 

in significant part— 

(aa) by an Alaska Native; 

(bb) in the exercise of traditional Alaska Native handicrafts; and 

7 

(cc) without the use of any mass copying device. 

(ii) INCLUSIONS.—The term ‘‘authentic Alaska Native 

article of handicraft’’ includes— 

(I) any weaving, carving, stitching, sewing, lacing, beading, drawing, or painting that meets the 

criteria described in clause (i); and 

(II) any item, including clothing, described in 

subclause (I) that combines the techniques described in that subclause. 

(2) CLARIFICATION FOR CERTAIN AUTHENTIC ALASKA NATIVE

ARTICLES OF HANDICRAFT.—Subject to paragraph (3) and notwithstanding any other provision of this Act, nothing in this 

Act prohibits the possession, offering for sale, sale, offering to 

barter, barter, offering to purchase, purchase, delivery for shipment, shipment, causing to be shipped or delivered for transportation, transport, causing to be transported, carrying, causing 

to be carried, or receiving for shipment, transportation, or carriage of any authentic Alaska Native article of handicraft on 

the basis that the authentic Alaska Native article of handicraft 

contains a nonedible migratory bird part. 

(3) LIMITATION.—This subsection does not apply to an authentic Alaska Native article of handicraft containing a part of 

a migratory bird that was taken in a wasteful manner. 

* * * * * * * 

(8) 

ADDITIONAL VIEWS 

H.R. 4069 would amend the Migratory Bird Treaty Act (MBTA) 

and change the treatment of authentic Alaska Native articles of 

handicraft under several treaties pertaining to migratory birds. 

The MBTA implements treaties between the United States and 

Canada, Mexico, Japan, and Russia for the protection of migratory 

birds. These treaties prohibit the taking, possession, import, export, 

transportation, sale, or trade of any migratory bird, or its parts, 

nests or eggs. H.R. 4069 would exempt any authentic Alaskan Native article of handicraft or clothing that contains a nonedible migratory bird part from this provision if the bird was taken in a 

wasteful manner. 

In July 2017, the United States Fish and Wildlife Service (FWS) 

released a final rule to allow Alaska Natives to sell authentic 

handicrafts that contain inedible byproducts from 27 species of migratory birds taken during the spring and summer Alaska migratory bird subsistence-harvest season. The rule does not allow for 

additional hunting and gives the FWS the authority to remove a 

species from the list if its population begins to decline. The rule 

was developed under an intense and thorough co-management 

process with the Alaska Department of Fish and Game and Alaska 

Native representatives to ensure that the United States remained 

in compliance with the treaties. 

Unlike the FWS final rule, H.R. 4069 circumvents treaty obligations of the United States to include all species. It also does not 

include seasonal hunting restrictions or provide the backstop that 

allows the FWS to remove a species if its population declines. At 

markup, Representative Don Young offered to work with Ranking 

Member Rau ́l M. Grijalva to address some of these concerns. We 

hope to work with our colleagues to ensure that this bill codifies 

the existing FWS rule while addressing the concerns of Alaska Natives. 

RAU ́ L M. GRIJALVA, 

Ranking Member, House 

Committee on Natural Resources. 

JARED HUFFMAN. 

Æ