U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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39–118

" ! SENATE 105TH CONGRESS

1st Session

TREATY DOC.

1997

105–26

PROTOCOL WITH MEXICO AMENDING CONVENTION

FOR PROTECTION OF MIGRATORY BIRDS AND GAME

MAMMALS

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

THE PROTOCOL BETWEEN THE GOVERNMENT OF THE UNITED

STATES OF AMERICA AND THE GOVERNMENT OF THE UNITED

MEXICAN STATES AMENDING THE CONVENTION FOR THE PROTECTION OF MIGRATORY BIRDS AND GAME MAMMALS, SIGNED

AT MEXICO CITY ON MAY 5, 1997

SEPTEMBER 15, 1997.—Protocol was read the first time and, together with

the accompanying papers, referred to the Committee on Foreign Relations and ordered to be printed for the use of the Senate

(III)

LETTER OF TRANSMITTAL

THE WHITE HOUSE, September 15, 1997.

To the Senate of the United States:

With a view to receiving the advice and consent of the Senate to

ratification, I transmit herewith the Protocol Between the Government of the United States of America and the Government of the

United Mexican States Amending the Convention for the Protection

of Migratory Birds and Game Mammals, signed at Mexico City on

May 5, 1997 (‘‘the Mexico Protocol’’). I transmit also, for the information of the Senate, the report of the Department of State with

respect to the Mexico Protocol.

In concert with a similar Protocol between the Governments of

the United States and Canada, the Mexico Protocol represents a

considerable achievement for the United States in conserving migratory birds and balancing the interests of conservationists, sports

hunters, and indigenous people. The Protocol should further enhance the management of and protection of this important resource

for the benefit of all users.

The Mexico Protocol is particularly important because it will permit the full implementation of the Protocol Amending the 1916

Convention for the Protection of Migratory Birds in Canada and

the United States (‘‘the Canada Protocol’’) that is pending before

the Senate at this time. The Canada Protocol is an important

agreement that addresses the management of a spring/summer

subsistence hunt of waterfowl in communities in Alaska and northern Canada. The Mexico Protocol conforms the Canadian and Mexican migratory bird conventions in a manner that will permit a

legal and regulated spring/summer subsistence hunt in Canada

and the United States.

I recommend that the Senate give early and favorable consideration to the Protocol and give its advice and consent to ratification.

WILLIAM J. CLINTON.

(V)

LETTER OF SUBMITTAL

Washington, August 27, 1997.

The PRESIDENT, The White House.

THE PRESIDENT: I have the honor to submit to you, with the view

to its transmission to the Senate for advice and consent to ratification, the Protocol between the Government of the United States of

America and the Government of the United Mexican States

Amending the Convention for the Protection of Migratory Birds

and Game Mammals, signed at Mexico City, May 5, 1997 (‘‘the

Mexico Protocol’’).

The Convention for the Protection of Migratory Birds and Game

Mammals, signed at Mexico City on February 7, 1936, (‘‘the 1936

Convention’’), mandates ‘‘a close season for wild ducks from the

tenth of March to the first of September.’’

The goals of the Mexico Protocol are to bring the 1936 Convention into conformity with practice, as indigenous people in Alaska

have continued their traditional hunt of these birds in the spring

and summer for subsistence and other related purposes despite the

prohibition in the 1936 Convention, and to permit full application

of the Protocol between the Government of the United States of

America and the Government of Canada Amending the 1916 Convention Between the United Kingdom and the United States of

America for the Protection of Migratory Birds in Canada and the

United States, signed at Washington on December 14, 1995 (‘‘the

Canada Protocol’’). Prompt ratification is of the essence to secure

conservation efforts of the United States and Mexico.

A detailed analysis of the Mexico Protocol follows.

THE MEXICO PROTOCOL

Article I of the Mexico Protocol amends Article II(D) of the 1936

Convention to permit, in the State of Alaska, the harvest of wild

ducks and their eggs by indigenous inhabitants during the period

from the tenth of March to the first of September for their own nutritional and other essential needs. This is necessary to provide domestic legal authority for this spring/summer hunt in Alaska,

where the inhabitants are generally unable to participate in the

customary autumn hunt, by which time in the year many of the

game birds have departed from the state. In Alaska, the spring

harvest of waterfowl and their eggs is a long-practiced custom of

the indigenous population that provides important nutritional and

cultural benefits to the indigenous populace.

Article II of the Mexico Protocol establishes that the Protocol will

enter into force on the date the United States and Mexico exchange

instruments of ratification and that the Protocol, which will be con-
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sidered an integral part of the 1936 Convention, will continue in

force for the duration of the Convention.

DOMESTIC IMPLEMENTATION

An existing statute (16 U.S.C. 712) authorizes the Department of

the Interior to promulgate regulations to implement migratory bird

treaties with a number of countries, including Mexico. No additional statutory authority is required to implement the Mexico Protocol.

The term ‘‘indigenous inhabitants’’ in Article I of the Mexico Protocol refers primarily to Alaska Natives who are permanent residents of villages within designated areas of Alaska where subsistence hunting of migratory birds is customary and traditional. The

term also includes non-Native permanent residents of these villages who have legitimate subsistence hunting needs. Subsistence

harvest areas encompass the customary and traditional hunting

areas of villages with a customary and traditional pattern of migratory bird harvest. These areas are to be designated through a deliberative regulatory process, which would include the management

bodies discussed below and employ the best available information

on nutritional and cultural needs, customary and traditional use,

and other pertinent factors.

Once regulations are established, most village areas within the

Alaska Peninsula, Kodiak Archipelago, the Aleutian Islands, and

areas north and west of the Alaska Range would qualify as subsistence harvest areas. Areas that would generally not qualify for a

spring or summer harvest include the Anchorage, MatanuskaSusitna and Fairbanks North Star boroughs, the Kenai Peninsula

roaded area and southeast Alaska. The list of exceptions does not

mean that individual communities within areas that are generally

excluded cannot meet the test for designation as subsistence harvest areas. For example, data indicate that there is customary and

traditional use of gull eggs by indigenous inhabitants in some villages in southeast Alaska; these villages could be included for this

limited purpose even through indigenous inhabitants in southeast

Alaska generally would be excluded from the spring/summer harvest.

In recognition of their need to assist their immediate families in

meeting their nutritional and other essential needs, or for the traditional teaching of cultural knowledge, residents of excluded areas

in Alaska may be invited to participate in the customary spring

and summer migratory bird harvest within the designated subsistence harvest areas around the villages in which their immediate

families have membership. Such participation would require permission of the village council and an appropriate permit issued

through the management body implementing the Protocol. ‘‘Immediate family’’ includes children, parents, grandparents, and siblings.

Harvest levels of migratory birds in the United States may vary

for all users, commensurate with the size of the migratory bird

populations. Any restrictions in harvest levels of migratory birds

necessary for conservation shall be shared equitably between users

in Alaska and users in others states, taking into account nutritional needs. The Mexico Protocol is not intended to create a pref-
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erence in favor of any group of users in the United States or to

modify any preference that may exist.

CONSISTENCY WITH OTHER MIGRATORY BIRD CONVENTIONS

The Mexico Protocol is needed in order for the United States to

be able to implement the Canada Protocol. That Protocol, which

similarly addresses the issue of the spring and summer hunt, is

pending before the Senate. The spring/summer harvest provisions

in the Canada Protocol as they apply to wild ducks cannot be implemented by the United States until the 1936 U.S.-Mexico Convention permits such a harvest of wild ducks. As a matter of U.S.

domestic law, the Department of Interior may not implement a provision of one convention that allows a hunt prohibited by the provision of another, since U.S. courts have held that the statute implementing the various migratory bird conventions should be interpreted to require application of the most restrictive convention in

the case of conflict. See Alaska Fish & Wildlife Fed’n & Outdoor

Council, Inc. v. Dunkle, 829 F. 2d 933, 941 (9th Cir. 1987), cert.

den., 485 U.S. 988 (1988).

It will not be necessary to amend additional conventions in order

to implement the Mexico Protocol or the Canada Protocol.

This Protocol represents a major step forward in the conservation

and management of migratory birds on a sustainable basis. Properly implemented, it will improve the health of the North American

migratory bird population and protect the interests of conservationists, sports hunters, indigenous people and all others who value

this important resource.

Accordingly, I recommend that the Mexico Protocol be transmitted to the Senate for advice and consent to ratification.

Respectfully submitted,

MADELEINE ALBRIGHT.
(1)
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