l^lt Owv\.^ >7 /^a ■(3-.A.Dyn:E] iieiftjg-es HEARINGS BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON AGRICULTURE HOUSE OF REPRESENTATIVES SIXTY-FOURTH CONGRESS First Session ON H. R. 11712 SATURDAY, JUNE 17, 1916 my WASHINGTON GOVERNMENT PRINTING OFFICE 1916 D. of D. AUG 7 1916 ^ GAME REFUGES. House of Representatives, Subcommittee of Committee ox Agriculture, Saturday, June 17, 1916. The subcommittee, consisting of Hon. H. M. Jacoway, Hon. Jolin V. Lesher, Hon. M. K. Reilly, Hon. James C McLaughlin, and Hon. W. W. Wilson, this day met, Hon. H. M. Jacoway (chairman) pre- siding, Mr. Jacoway. The subcommittee has under consideration to-day H. R. 11712, introduced by Mr. Hayden, and I will ask that the bill be printed at this point in the record. [H. R. 11712, Sixty-fourth Congress, first session.] A BILL To establish game sanctuaries in national forests, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That for the purpose of providing breeding places for game animals on lands in the national forests not chiefly suitable for agriculture the President of the United States is hereby autliorized, upon recommendation of the Secretary of Agriculture and with the approval of the governors of the States in which the respective national forests are located, to establish, by public proclamation, certain specified areas within said forests as game sanctuaries or refuges wliich shall be devoted to the increase of game of all kinds naturally adapted thereto, but it is not intended that the lands included in such game sanctuaries or refuges shall cease to be part of the national forests wherein they are located, and the establishment of such game sanc- tuaries or refuges shall not prevent the Secretary of Agriculture from permitting grazing on these areas of cattle, sheep, and other domestic animals or permitting other uses of the national forests under and in conformity with the laws and the rules and regulations applicable thereto, so far as such use may be- consistent wdth the purposes for which such game sanctuaries or refuges are authorized to be established. Sec. 2. That when such game sanctuaries or refuges have been established, as provided in section one of this act, hunting, pursuing, poisoning, killing, or capturing by trapping, netting, or any other means, or attempting to hunt, i)ursue. kill, or capture any wild animals or birds or fish for any purpose whatever u])on the lands of the United States \vithin the limits of said game sanctuaries or refuges shall be unlawful except as hereinafter provided, and any person violating any jirovision of this act or any of the rules and regulations made under the provisions of this act shall be deemed guilty of a misdemeanor and shall upon conviction in any Ignited States court be fined in a sum not exceeding |500, or be imprisoned for a i)eriod not exceed- ing six months, or shall suffer both fine and imprisonment, in the discretion of the court. Sec. 3. That the Secretary of Agriculture shall execute the provisions of this act, and he is hereby authorized to make all needful rules and regulations for the admin- istration of such game sanctuaries or refuges in accordance with the purpose of this act, including regulations under which fishing not in contravention of State laws, and hunting, capturing, or killing predatory animals, such as wolves, coyotes, foxes, pumas, and other species destructive to live stock or mid life may be permitted witliin the limits of said game sanctuaries or refuges. Sec. 4. That the Secretary of Agriculture shall cause the boundaries of all game sanctuaries or refuges established under the provisions of this act to l)e suital)ly marked where necessary and notices to be j)osted showing the location thereof and warning the public that hunting game animals and Inrds is prohibited therein, and tliat hunt- ing, capturing, or killing predatory animals, and lishing is permitted only under the rules and regulations of the Secretary of Agriculture. 3 4 GAME REFUGES. Sec. 5. That it is the purpose of this act to provide breeding places for large wild animals, such as deer, elk, mountain sheep, and other species, which may be made to produce an increased food supply by breeding under natural conditions and spread- ing over adjacent territory, whereon they may be hunted in accordance with State laws; to establish sanctuaries of medium size rather than large preserves; and when- ever possible to establish chains of sanctuaries which in turn will restore wild game animals to intervening territory; but it is not the purpose to authorize the establish- ment of such game sanctuaries or refuges as will embrace all the hunting grounds of any given region. STATEMENT OF HON. FRANK W. MONDELL, A REPRESENTA- TIVE IN CONGRESS FROM THE STATE OF WYOMING. Mr. Jacoway. Yoo may proceed, Mr. Mondell. Mr. Mondell. Mr. Chairman and gentlemen of the subcommittee, I am opposed to the bill under consideration for a variety of reason's, as follows : First. Because Congress has not the constitutional authority to enact such legislation. Second. Because if it were within the power of Congress to enact such legislation it would not be wise to do so, owing to the fact that the evils that would attend and follow such legislation and its en- forcement by Federal authorities would far outweigh any good that it may be claimed would flow from it. Third. Because — and I want particularly to call your attention to this — the States affected have full, complete, and unquestioned authority to provide for game preserves or sanctuaries, as the bill proposes, and to fully and completely protect the game within them, and a number of States have done so. As a matter of fact, not only have the States full, complete, and absolute authority to do every- thing that is proposed in this bill, but they have authority to do very much more in the protection of game than the bill proposes, and do it. The bill proposes to authorize ths President, upon the recom- mendation of the Secretary of Agriculture, and with the approval of the governors of the States, to establish certain areas within the national forests as game sanctuaries or refuges; and section 2 of the bill provides a penalty to be fixed by a United States court of both fine and imprisonment for the hunting, pursuing, or killing, or attempting to hunt, pursue, kill, or capture any wild animal, birds, or fish within the limits of these preserves; while section 3 authorizes the Secretary of Agriculture to allow fishing or the hunting or killing of predatory wild animals in a manner not in contravention of State laws and under such regulations as he may prescribe. It will be noted that the bill raises squarely the cjuestion as to the jurisdiction of the Federal and State governments, respectively, over the hunting, killing, and taking of wild game, and collaterally the question of the extent or character of Federal authority and jurisdiction over public lands reserved as national forests. As to the first and primarily important of these propositions, there is little ground for difference of opinion. In the case of Ward v. Racehorse (163 U. S., p. 507) the court held ''the power of a State to control and regulate the taking of game can not be questioned." I have quoted the exact words of the decision, and this power was declared to be "complete," page 510, and it was held that this power GAME REFUGES. 5 extends to the public lands of the United Stales within the State's borders, (See Cooley's Constitutional Limitations, p. 291.) Such is the language of the court. The earliest of the widely quoted cases on the character of the State's authority over the capture or kilhiig and taking of game is that of Geer v. Connecticut (161 U. S., 519). This was a case in which the authority of the State to control the disposition of game, or its transportation beyond the State's border after being lawfully killed was challenged in the Connecticut courts, and the case went to the Supreme Court on the proposition that the State statute violated the Constitution of the United States. The opinion of the court, which was rendered March 2, 1898, by Justice Wlnte, discussed at length the character of wild game, the questions of ownership in the same, and the control of the sovereign over game, going back to English law and foUowing through the colonics to the States of the Union. That case is the one most quoted, because it covers the ground most completely. The decision quoted with approval m.any State and Federal cases to the effect that "the wild game within a State belongs to the people in their collective sovereign capacity" (Ex parte Maier, Supremo Court of California) ; ' ' the State represents its people in this owner- ship" (Martin v. Waddell, 16 Pet., 410); and this ownersliip and control "is in the State, not as a proprietor but in its sovereign capacit}'" (State v. Rodman, Supreme Court, Minnesota). Referring to the complete and exclusive authority of the sovereign over game the court in this case — that is, the case of Geer v. Con- necticut — said : It is also certain that tliis power which the colonies thus possessed passed — That is, the sovereign power over game — to the States with the separation from the mother country, and remains in them at the present day. The next of the important cases, and one very much m point hi comiection with this legislation, is the case of Ward v. Racehorse (U. S. Rept., 163, p. 504), Ward bemg a sheriff in my State and Race- horse being an Indian. The decision in this case was also delivered by Justice Wliite and was handed down May 25, 1896. This case arose out of the hunting of elk by certam Indians in the State of Wyommg at a time when the State game law prohibited such hunting. It was claimed on behalf of the Indians that they had a right to hunt on the unoccupied lands of the United States by reason of the pro- visions of article 4 of the treaty of February 24, 1869, with the Bannock Indians, wherein it was provided that the Indians — shall have the right to hunt upon the unoccupied lands of the United States so long as game may be found thereon and so long as peace subsists among the whites and Indians on the borders of the hunting districts. I have already quoted briefly from this decision. It was held by the court that the State of Wyoming was admitted mto the Union on an equality and with aU of the powers of the other States. The court said: The power of all the States to regulate the killing of game within their borders will not be gainsaid, yet, if the treaty applies to the unoccupied land of the United States in the State of Wyoming, that State" would be bereft of such power since each isolated 6 GAME REFUGES. piece of land belonging to the United States as a private owner, so long as it continued to be unoccupied land, would be exempt in this regard from the authority of the State. Wyoming tjien will have been admitted into the Union not as an equal member but as one shorn of a legislative power vested in all the other States of the Union, a power resulting from the fact of statehood and incident to its plenary existence. The court held that no such contention was tenable. As indicating the court's view as to the lack of any authority on the part of the Federal Government over the capture and killing of game within a State, is this statement summing up the argument of counsel: But the argument goes further than this, since it insists that, although by the treaty the hunting privilege was to cease whenever the United States parted merely -Rdth the title to any of its lands, yet that privilege was to continue, although the United States parted with its entire authority over the capture and killing of game. I have already referred to the language of the decision to the effect that, "The power of a State to control and regulate the taking of game can not b© questioned," "when the United States had called into being a sovereign State, a necessary incident of whose authority was the complete power to regulate the killing of game within its borders." The court held that a repeal of the treaty resulted from the act admitting the State into the Union so far as it related to the hunt- ing of game within the State. That case covers every feature of the situation presented by this bill. The complete power and exclusive jurisdiction of the State, the Federal Government having parted with all the authority it had when the State was admitted, and further, that such complete and exclusive jurisdiction related to the public lands just as much as it related to the private lands. There are a number of other and more recent decisions of Federal and State courts even more strongly emphasizing, if that were possible, the complete jurisdiction of the State over the taking and killing of game, one of which is the case of the United States v. Shauver (214 Fed. Rep., 154), which case is now before the Supreme Court of the United States. That case involves, of course, certain other questions than those directly raised by this legislation, the questions that were raised by the passage of so-called migratory bird law. That case challenges the constitutionality of the migratory bird law, and is now before the court for a rehearing. One very good reason for not reporting legislation affecting the control of game within the States at this time is the fact that there is before the Supreme Court that case which raises the general question, and the court in its decision will undoubtedly cover practically the entire field as they did in the case of Gecr v. Connecticut, and to a lesser extent in the case of Ward v. Racehorse. I feel that I have taken up more time than, perhaps, I should in the presentation of this feature of the case, because as a matter of fact, State control over the hunting or taking of game is either ad- mitted by those who are in favor of this bill, or they entirely avoid that issue in their arguments. It is true that in the discussion before the committee a few days ago, one gentleman advanced the novel theory that the sovereign, whom he admitted had exclusive jurisdic- tion over game, was not the State but the Federal Government. Tliat argument is conclusively settled in the case of Geer v. Con- necticut and Ward v. Racehorse, particularly the first case, where the question, where the sovereign authority rested, was argued at length, GAME REFUGES. 7 beginning with ancient times and coming on down through the Colonies to the States. As I said, I feel that I have taken up more time than I should in the presentation of this feature of the case, because, as a matter of fact, State control over the hunting and taking of game is either admitted by those who favor this legislation or they entirely avoid that question, and the contention that it is the Federal Government that is the sovereign is not tenable for a moment in view of the fact that in the case of Geer v. Connecticut that was one of the points raised. The court held that the State was the sovereign and that its sovereignty was absolute and exclusive. An effort is made, however, to find an excuse for this legislation in the theory that the l"^nited States as a proprietor may assert con- trol over the taking of game and that it may go as far in that direc- tion as is proposed in this bill. That argument was made in the Racehorse case and because of the fact that the lands on which the Indians hunted belonged to the* United States. The court brushed the contention aside, calling attention to the fact that it was idle to argue that the Federal Government, which lost, waived all control over game by the admission of the State into the Union, still main- tained some sort of control by reason of its land ownership. THE CLAIM AS A PROPRIETOR. But it is urged that Congress has the authority to legislate as is herein proposed, under section 3 of Article IV of the Constitution of the United States, wliich provides that "The Congress shall have the power to dispose of and make all needful rules and regulations respect- ing the territory and other property belonging to the Unted States." It is claimed that as the land on which it is proposed to establish these game preserves are lands of the United States, the power oyer them and in respect to them granted by the constitutional provision I have cpoted is sufficient to authorize legislation of this character. That argument is made in a report signed by the Secretary of Agri- culture, under date of May 31, addressed to Hon. Carl Hayden and now before this committee. The argument follows quite closely a more elaborate argument made in a letter dated January 3, 1902, signed by P. C. Knox, Attorney General, and addressed to the Hon. John F. Lacey, chairman of the Committee on the Public Lands of the House of Representatives. Not bemg a lawyer, it is perhaps presump- tious on my part to attempt to answer the arguments of lawyers, hke the present Secretary of Agriculture and the former Attorney General; but I think that a careful perusal of their arguments will make it very clear, even to the lay mind, that they have gone far afield in their argu- ment and have necessarily left some very wide gaps m the thread of their logic. We are, aU of us, familiar with the general proposition that the Federal Government is one of hmited powers and that all of the powers not granted are reserved to the States or tlie people and that powers can not be implied or inferred unless they are a necessary inci- dent to powers clearly granted. I have no disposition to cpiarrel with gentlemen who give a wide construction to the constitutional pro- vision that has been c[uoted, provided that construction does not imply power not necessary to carrying out the purposes of the granted 8 GAME EEFUGES. power. There are two very weak spots in the arguments contamed m the opinions to which I have referred. One is that no court has ever held, directly or indirectly, favorably to their contention, and second, that givmg the widest possible consr^uction to the word "property" and tJie word "territory" contained in the section of the Constitution referred to, and admitting, for the sake of argument, that they apply to and cover and embrace lands held in forest reserves by no possible extension of 'authority or jurisdiction necessary to carrying out the purpose of the section, can legislation of this kind be justified. The article in question provides that Congress shall have the power to dispose of and make all "needful" rules and regulations respecting the territory and other property belonging to the United States. What is the property belonging to the United States in a forest reserve? It is the land and all that grows upon it and all that it contains. The water of the flowing streams is not the property of the United States. The wild game that may feed upon or roam over these lands has been declared by th*e courts, in the cases I have re- ferred to, to be the property of all the people, under the exclusive jurisdiction of the States, That includes the fish as well as the game, because some of the decisions of the State courts are in regard to fish. The courts have held that Congress has the power to legislate to protect the property of the United States, I am one of those who believe that it has the poA\er to go far in doing that. The courts have held that Congress in exercising this power to protect the prop- erty of the United States may go farther than the individual in the protection of his property, because it may actually legislate and pre- scribe punisluTient for the destruction of or injury to its property. I do not deny that, but when it attempts to do anything with wild game, to protect, to destroy, or to regulate, it is attempting to manage something that clearly is not the property of the United States. That will not be denied by anyone in the face of the decisions. The courts have held repeatedly that wild game is the property of the people, held in trust for them by the sovereign, the State. That has been repeated over and over in substance. It can not be argued that the Government needs to protect its property against wild game, for the Government has no property that the wild game will injure, and, at any rate, it is not attempting in this legislation to protect the property against the game but to increase the game on the property. The Government would have a perfect right to fence its land against w41d game, but that is not what it is proposing to do. But it is further insisted that the Federal Government as the pro- prietor has authority to forbid trespass, and the courts have held that it may go further than an ordinary proprietor and provide punishment for trespass or injury to lands in forest reserves, and it is claimed that the Federal Government may keep people off of its land altogether, or allow them on under certain conditions, and therefore do what is proposed to be done in this bill. The fallacy of that argument lies in the fact that the right of the Federal Gov- ernment to protect its property and punish for injury to it is assumed to include the right to punish in its sovereim capacity acts that do not injure its property, affecting a kind of property that is in the ownership of and under the complete control, according to the courts, of another sovereio-n. GAME REFUGES. 9 When we come to analyze these fine-spun theories whereby it is sought to invade the authority of the State, it will be seen that they are all part of an attempt to secure by indirciction a control and jurisdiction that everyone admits could not be secured directly. If there is any one form of Federal encroachment upon the people's reserved sovereignty that is more dangerous than another, it is that form of encroachment which seeks the extension of Federal authority by indirect, roundabout, and underground means. teVILS AS COMPARED TO BENEFITS CLAIMED. So n/dch for tlio legal aspect of the situation. I have said that I v> tis opposed to this legislation, because if it were within the power of Congress to enact such legislation it would not be wise to do so; because the c.^ils that would attend and follow it would far outw cigh any gocd that it may bo claimed would flow from it. It is claimed, on behalf of this legislation, that the wild game of the western coantry is rapidly decreasing, that it is highly important that it shoukl be increased in numbers, and that these game sanctuaries scattered around throughout the forest reserves woidd give the v/ild game an opportunity to increase. As a matter of fact, it is not true that wild game of all kinds is rapidly and contiimously decreasing in numbers at this time. In some parts of the West it has been very well protected and is on the increase. But assuming that this plan v% ould increase the wild game, but not admitting that it is the only way to increase it, at what a loss to the dignity of the States, at what a cost of money and peace of mind to their citizens, at what a certainty of continual conflict between the Federal and local author- ities, would the possible benefits be secured. Nobody knows how many of these reserves might be created, how large a territory in the aggregate they might include. The last section of the bill states that it is the purpose of the bill to estabhsh sanctuaries of medium size rather than large preserves, and it is not the purpose to estab- lish sanctuaries or preserves to embrace all the hunting groimds of an\" given region. Anyone familiar with legislation knows that such an expression of intent on the part of the law-making body still leaves almost unlimited latitude for action. The bill provides that these preserves shall be established upon the recommendation of the Secretary of Agriculture. I presume they would not be otherwise established. It also provides that they sliall have the approval of the governors of the "States, though it is doubtful whether such an approval would be an essential under the bill. It has never seemed to me, however, that it would help the matter any to provide that the governor shall be the medium througli which the sovereignty of tlie State is attempted to be reduced. Assume the preserves were created in numbers in various parts of the mountain forest reserves. In few cases could their boundaries, except at great expense, be very clearly marked if they are to be numerous and small as proposed. The hunter on the forest reserve pursuing game m season under the State law would constantly be in danger or be tempted to foUow game onto tlie game refuge, or to shoot game on the game refuge from adjoining territory, whereupon the jurisdiction over his act would pass from a State to a Federal court. 10 GAME KEFUGES. In my State there are places where by the nearest route of travel you would have to go several hundred miles to reach a Federal court to try a man for, let us say, killmg a jack rabbit on one of these reserves or shooting at one with an attempt to kill it, or a mischievous small boy for robbing a bird's nest. These Federal courts in Western States are frequently hundreds of miles from the areas that would be designated as game refuges and the citizen would constantly run the risk of bemg hauled away to a Federal court for some trifling mfraction of a rule or regulation of the Secretary, while pursuing game in accordance with State laws, if we give the Secretary, as is proposed, full authority to prescribe what act shall constitute a misdemeanor or crime, punishable as provided m the bill. The provisions of the bill with regard to fishing are even more clearly unconstitutional than those with regard to hunting, because they might not involve a complete prohibition, but a regulation of the fishing privilege — there is no doubt about that bemg the exclu- sive province of the State — it would afford even greater opportunity for friction and conflict between State and Federal jurisdiction. The rules and regulations of the Secretary of Agriculture might subject a citizen to the extreme penalty oi the bill for the most trifling act of carelessness or inadvertence, and yet it is proposed to give the Secretary full authority to thus declare and punish what he is pleased to designate offenses. Mr, Lesher. Is not that regulated by law, the crime or the mis- demeanor ? Mr. MoNDELL. The bill provides that any violation of the rules and regulations promulgated by the Secretary shall be subject to a fine not to exceed $500 and imprisonment not to exceed six months, and the Secretary, under that authority, could fine a man the maxi- mum penalty for the destruction of a bird's nest, the taking of a trout, or the killing of a chipmunk. Perhaps he would not go that far, but he would have complete and unquestioned authority to do so. If legislation of this kind were enacted, and unless or until the courts set it aside, because the courts have decided that rules and regulations may be promulgated which will have the force of law. If they relate to subjects over which Congress has control, they went far afield when they so held, but they did. Mr. SissoN. That grew out of the regulations of the Postmaster General ? Mr. MoNDELL. Yes, sir. There are some cases where it seems to be necessary, but it is a very dangerous power. STATES HAVE FULL POWER. I have stated that I was opposed to this legislation, because the States affected have full, complete, and uncj[uestioned authority to do all that the bill proposes to have done and to fuUy and completely protect the game anywhere within their borders. The migratory- bird law was passed on the theory and under the claim that the States, acting independently, were practically powerless to ade- c^uately protect migratory birds. The advocates of that law urged its necessity, because the Federal Government could alone, it was said, furnish the needed protection. No such claim is made on GAME REFUGES. 11 behalf of this legislation, or if it is, it is not well founded. The legislatures of all the Western States, so far as I am acquainted with their constitutional provisions, not only have authority to prohibit the taking of certain or all kinds of game, permanently or for a given period, or to regulate its taking as they see fit, but they also have authority to prescribe certain areas, few or many, large or small, anywhere within their boundaries on or off forest reserves, within which hunting and fishing may be absolutely prohibited, or within which the seasons for himting or fishing shall be different from the seasons in other parts of the State. The State which I have the honor to represent in Congress has repeatedly legislated in the establishment and maintenance of per- manent or temporary game sanctuaries. For many years the State made the killing of buffalo a felony, and wdiile the action was taken too late to save many, it did save in the northwestern part of the State the only herd of buffalo that survived in a wild state. For many years the State prohibited the killing of moose, and by so doing has created a moose herd which is probably larger now than it has been at any time in the last 30 years, possibly larger than it ever was, even before the white man came. In addition to protecting elk throughout the State generally by restricting the period of hunting and the number that one may kill, the State nearly 10 3'ears ago created a refuge for elk and other classes of big game south of the Yellowstone Park, covering an area as large as some States m the Union. Our game legislation and en- forcement has given us a herd of elk which partly summers in the Yellowstone Park, but wholly winters south of the park, variously estimated at from twenty to thirty-five thousand head. Mr. McLaughlin. In fixing the area of that refuge did the State include any part of the national forest ? Mr. MoNDELL. It is all in the national forest; all of our State refuges so far have been in national forests, because the national for- est is the natural game region. The natural game region is the mountains, and the national forests in our State are almost wholly on and in the mountams and the high country. The rough, broken, rocky, timbered country contains game. Even the very high areas near the timber line and above the timber line have some kinds of game. Around the peaks are the sheep and the goats, and lower clown the elk and deer. Mr. McLaughlin. Is the title to any of that same kind of land m the State ? Mr. MoNDELL. There are no lands of that kind in our State that are not in forest reserves. It is almost all pul)lic land. The game country is mostly within the forest reserves with us, and that is true of most of the States in which there are forest reserves. The State legislature has at various times prohibited, for varying periods, the taking of game of certain kinds in large areas in various parts of the State — notably the Big Horn Mountains — and thus cre- ated game sanctuaries. The last leo;islature had under consideration the creation of some six or more additional game preserves, but the matter was presented, I am told, so late in the session that it was impossil)le to secure action. The attitude of the people of our State is favorable to the proper preservation of game and always has been ; but, of course, our people want to know where these preserves are 12 GAME REFUGES. to be and what they are to include, and all that sort of thing. We take a great deal of pride in our great elk herd and in our moose herd, which has grown in numbers so that it is already overflowing the only country in the State where moose thrive — that is, in the high mountain swampy region. Mr. McLaughlin. Has the State had any difnculty in describing the areas to be included Vvatliin the gaaie preserves, so that hunters may know exactly where the lines of the preserves are and not be subject to this difRculty that you speok of, namely, v^hasing the game from free land onto the preserves without knowing it, and so on ? Mr. MoNDELL. Our State, in the main, has created sanctuaries or preserves of considerable size. The boundaries of those sanctuaries or preserves are changed from time to time as conditions clnnge, and by making them of considerable size river, mountsdn. and v ater- shed boundaries can be utilized — natural boundaries, vvhich people recognize. Furthermore, the hunter is always under the same juris- diction; he may pass to a region where the provisions of law may be different, but he is under the same jurisdiction in or out of the preserve. If he violates the law, he is arrested by the same officers and tried by the same court. The jurisdiction does not change. The status of the territory may change, but the jurisdiction remains the same. THIS BILL NOT NECESSARY TO COOPERATION. It is not necessary to have Federal game preserves or infringe- ments by Federal upon State authority in order to secure cooperation between State and Federal authorities on forest reserves in the pro- tection of game. A forest ranger with authority to act as a State deputy game warden, which authority most of them have, can enforce the State law as effectively as he could the Federal statute and with much more certainty and less confusion and friction, because of the fact that the jurisdiction was the same — that of the State over the entire forest area. The State game preserves, to which I have re- ferred, in Wyoming are wholly upon and within forest reserves and the State game officers and the forest reserve officers, acting as State game officers, work in harmony in the care and preservation of game. In my State every forest ranger, I think, is a game warden. The State pays them a nominal sum — $1 a year I think it is — and they aid very materially in the enforcement of the State laws. As a matter of fact, we have gotten along very well, I am told, with the forest officials and have welcomed their assistance in that respect. They protect the game without any particular loss of time that might be required in their other work, because they are constantly on the reserves and constantly over the territory where the State game laws operate. Not only liave the States full authority to put in operation, under State control, a system of game refuges; not only have some of the States already adopted this policy, but State legislatures being familiar with every feature and factor of the situation, are capable of legislating more wisely on the subject than the President, depend- ing on the advice of some one, could do. In any event, no policy of fixed and permanent areas within which hunting should be entirely GAME REFUGES. 13 prohibited would be a wise one. And that is one of the strongest ob- jections to the bill. The location and boundaries of such areas would need, in order to serve the purposes for which established, to be modified from time to time, and in addition closed seasons or complete prohibition of hunting certain classes of game must from time to time be provided for over much larger areas than should be included in any permanent game refuge. At times it should cover an entire State, as has been provided in Wyoming in the case of moose. From time to time, in the case of elk, it should cover vast areas, and. the same is true in the case of antelope, in order to save, if pos- sible, some of the remaining antelope. Under certain conditions a shortening of the open season and a limitation of the bag extending over all or a large portion of a State is a much better form of game preservation than the permanent maintenance of small areas in which no hunting is allowed. The State, in full authority in all these matters, is in position to handle the question of game preservation very much better than it could be handled under conflicting attempted State and Federal jurisdiction. CLAIM THAT STATES WILL NOT ACT. But, it is argued that the States will not care for and preserve game, and the story of the passing of the buffalo is cited. Anyone who knows anything about the habits of the buffalo knows that its passing, in the face of on-coming and spreading civilization, was inevitable. They can not be preserved, except in comparatively small herds under conditions of semidomestication, except possibly a few m a wild state m a great wilderness region, hke that of northwest Wyoming, mcluding the Yellowstone Park and vicinity. That is the only place where we have maintamed a wild buffalo herd and that is possibly the only place in the United States where it could be done, because the mountain area there is large and the territory is comparatively easily protected; but ordinarily buffalo would never be preserved in one of these game preserves. The buffalo is an animal that travels far if allowed to, and must generally be held under fence. The buffalo had to go with the coming of civilization, because civihzation brought with it animals worth much more to man; animals which produced mucli more, considering the grass they consumed. A highly developed beef animal produces infinitely better meat, and more of it, for every pound of food he eats, and can be handled so as to utihze grasses more economically than the buffalo. The buffalo never did utilize grasses economically. Even when most plentiful in tluit western country they trampled back and forth and destroyed a great deal more grass than they ever ate. The antelope can not be preserved in the refuges tliat are proposed for they are all more or less timbered, and the antelope shuns timber. You can not get him anywhere near a place having timber or brush on it. The larger wild animals always decrease m great numbers diu'ing the pioneer and early development period of a country. They have a way of commg back later, particularly the deer, as the boundaries of settlements become fixed and the rougher country less distiu'])ed, 14 GAME EEFUGES. as the professional hunter decreases in number and orderly condi- tions are established. The wonderful increase in game in the State of Maine has been cited before this committee as an argument for this bill. It is the strongest argument against it. The protection and the increase of game in Pennsylvania has been referred to. The States will and do — those of them who have natural game country within their borders — gradually, sometimes, but certamly in all cases, develop a healthy pubhc sentiment in favor of game preservation, resultmg in a reasonable increase of game within their borders. I venture to say that the deer, which at one time no doubt became quite scarce, have for a number of years past been increasmg, or at least not decreasmg in numbers, in the wooded parts of Wisconsin and Minnesota. And 1 think that is also true in Michigan, and our friend, Mr. McLaughlin, knows more about that than I do. But assuming for the sake of argument that the people of a State were not specially interested in the protection and increase of game within their borders — it is a matter over which they have jurisdic- tion, according to the courts — why should the Federal Government attempt to invade a domain over wliichit has no jurisdiction? There are many of the States which have not always given that protection to human life as against mob violence which we think they should, but no one is using that as an argument in favor of the extension of Fed- eral police authority. There are several classes of people who favor this legislation. There are naturalists and game lovers who, never having considered questions of government and jurisdiction and who being impatient because the States do not do everything that they would like to have them do at once, forthwith seek this short-cut of Federal authority. That has got to be fashionable in these days, not only in this regard but as to other matters. A man gets the impression that a certain community does not travel as fast as he believes it ought to travel in matters within the jurisdiction of the State and the jurisdiction of the local authorities, and he comes down here to Congress and asks his Member of Congress to introduce a bill fixing it all up through Federal legislation. He says "Let the strong hand of the Federal Govern- ment do it." There are good people who, being interested in the preservation of game, favor on general principles the plans proposed in the name of game preservation without indorsing or even taking the trouble to investigate the details of the plan. That is true of some people in my State. They have indorsed this Hornaday plan without knowing fully what it means. They are in favor of game preservation. As I told you the other day, I have never received a communication from a citizen of my State asking me to oppose this bill, but I have received a number of communications asking me to support it, mostly from people who do not fully understand what its effect would be, but sup- port it because they are told it means some help in game preserva- tion; and, second, and more important, that it is claimed that the Federal Government will appropriate for taking care of the game and save us the expense. Some people seem to be willing to sell their State birthright for a very small mess of Federal pottage. There are Federal officials having to do with forest reserves and matters pertaining to game life who are naturally anxious to broaden GAME REFUGES. 15 and extend their authority and control. They woidd never trouble themselves over questions of jurisdiction. They naturally consider Federal control the best. There are certain clubs organized of pro- fessional or amateur hunters who want to see game increased and who do not always approve State game regulations who give their assent with or without information to any proposal of the extension of Federal authority. I know of a few gentlemen who are very anxious for this legisla- tion because they have not been entirely happy over the very strict regulation m regard to elk and other hunting in my State. They actually have the idea that in some way this bill gives the Federal Government control over hunting in the States, which it does not purport to do at all, except that it attempts to prohibit it in certain regions. Those who favor this legislation and understand it do not ordi- narily, publicly, proclaim their reasons, or at least all of them, for advocating the legislation. Many such people desire to break down and destroy completely State jurisdiction and control over game, at least within forest reserves. They know this bill will not do that. They know perfect!}^ well that if only small areas are included in these so-called sanctuaries, as the Federal authority will have no control over the game as it passes from the sanctuaries, their estab- lisliment will have little effect on increasing the amount of game in a region which does not have wise State law^s enforced by healthy public opmion. Such people ought to know that the friction caused by conflict of Federal and State authority around and in these refuges will tend to weaken rather than strengthen public sentiment in the localities in favor of game preservation. Out of this condition, unless the courts intervene, a general extension of the Federal authority is expected by a considerable number of people. I want to emphasize that fact. Attention was called the other day to the fact that in the State of Montana, in parts of which there never has been a very good pu])lic sentiment in the matter of game preservation, a lot of elk that had strayed from the Yellowstone Park were slaughtered. Yellowstone Park is the largest of our game sanc- tuaries, but the moment the game went beyond the sanctuary it was under State law. Now, you might increase that sanctuary a few miles by taking in some forest reserves adjacent to it, but you could not extend it over all of the State of Montana; you could not extend it over all the country in the forest reserve, because if you did you would be violating the plain intent, or the proclaimed intent of the bill, and if you did not so extend it over all of the country in which there was game you would not protect the game, but, perhaps, tend to create a sentiment that would give it less protection than now when it ranged outside the sanctuaries. ^Ir. Jacoway. Your argument, then, is that the States can control all of the territory within the State, whereas the Federal Government can only control that part which it owns ? Mr. MoxDELL. If the Federal Government can control at all it can control only as a ])roprietor and through a prohibition against what it alleges to be a trespass. That is the only the(U-y on which you can establish these preserves at all or maintain them. You can not maintain them on any theory that the Federal Government has any control over the game, because the game is not the Government's 16 GAME KEFUGES. property. The Federal Government may go to the hmit in the protection of its own property but it can not legislate for the pro- tection of the game, because that is not its property. If it does it at all it does it entirely by indirection. In conclusion, Mr. Chairman, the proposed legislation deals with a subject over which Congress has no constitutional authority. It attempts to do by indirection what it is generally conceded could not be done by direction. It proposes a plan which would dot western Commonwealths with Federal game principalities and would result in endless conflict of authority. It would subject the citizens of certain western States to the danger of being arrested and taken hundreds of miles from their homes to be tried and sentenced by a Federal court for trifling offenses. It would involve largely increased expenditures by the Federal Government. If game preservation is sought, it should be sought through proper, legitimate, and constitutional channels. The States are clothed with complete authority to protect game in the manner proposed by this bill, or in any other way. The States have and are showing a growing disposition and inclination for game preservation within reason, as witness the States of Maine, Pennsylvania, and others, and in the region which this bill affects, the States of Colorado and Wyoming. The bill is a bold and brazen attempt to invade State jurisdiction in a matter in which the States have exclusive juris- diction and in regard to which they are acting with ever-increasing foresight and care. There is one statement in the bill that I have not referred to. because I did not think it ought to be dignified by an argument, That is the proposition contained in the stump speech of the last session, that all of this is for the purpose of increasing the supply of food — the meat supply of the country. Within certain limits game can be iraintaind in the rocky, rougii, and broken country wuere domestic animals will not or can not go. The mainten^ince of that game is a clear gain, because they do consume grasses and snrubbery that domestic ani'rals will not reach. But as soon as you leave that kind of a region, then any increase of wild game in a country that ir ay be advantageously grazed by domestic animals is not an increase in the iood supply of the country, but results in a decrease of the food supply of tile country to the extent that game consumes forage that would otherwise be consumed by domestic animals, such as sheep and cattle. Sucli annuals produce much more in meat and other products than any sort of wild game produces in proportion to the vegetation they consume. Domestic animals are the final product of centuries of effort in producuig the animals that give the greatest and most satisfactory returns for what they receive in the way of sustenance. Therefore, the increase of game in these game pre- serves beyond a certain point would not result in an increase of the meat supply, but an actual decrease. This illustrates the fallacy of some of the arguments that are advanced in support of the legislation. In our State we have an elk herd estimated at from 20,000 to 35,000 head: we do not know just how many there are. From one-third to a half of them are in the Yellowstone Park during the summer, the balance of them south of the Park; all of them are in the State south of the park in the winter time, the country being too high and snowy for them in the Yellowstone Park during that season. That herd, GAME REFUGES. 17 or rt large part of it, is in territory that could not be advantageously utilized for live stock, although it does encroach somewhat upon territory that might be used by grazing animals. But our people want to maintain that herd as large as it can be reasonably main- tained in that territory because tney take great pri(h^ in it. " But it would he very easy to extend the elk herd in Wyoming over territory that is occupied by grazing animals, although I do not assume that is wliat is intended or proposed by this bill. Now, gentlemen, do not lose sight of this: The forest reserves of the country are or may be completely grazed. You see in this eastern country a great deal of rough, brushy country which is not utihzed for grazing purposes. That sort of thing' is practically unknown in our country. Under the conditions that we have, practically everything in the way of feed is utilized, and the stock grazes over all of these reserves except the highest and best parts of them. I am not opposing this legislation on the tlieory that it would inter- fere with live stock; but it could very easily be administered in a way to seriously interfere with the live stock industry, because you can only increase game beyond a certain point by utilizing grasses and herbage that would otherwise be used by sheep and cattle. The best way to preserve game in the western country is to preserve it under the jurisdiction that has control of it. It will be best preserved in that way, and it will be best for everybody that it be preserved in that way. In most of the States a very reasonable amount of effort will result in the establishment of all the reserves and refuges that ought to be established. As a matter of fact, our experience is that in the main we will probably do much better by shortening the hunting or open season in all, or a large portion, of the State from time to time ratlier than to have certain places where they are not hunted at all at any time. These larger animals are not hunted except for from two weeks to six weeks in the faU, and by shortening the season to two weeks, or occasionally closing it entirel}^ for a series of j^ears, you accomplish the result of allowing your game to increase without the danger of subjecting your citizens to danger of violation of tha law relating to a particular territory, the boundaries of which may not be entirely familiar to them. Gentlemen of the committee, I thank you very much for your attention. STATEMENT OF MR. R. W. WILLIAMS, ASSISTANT TO THE SOLICITOR, DEPARTMENT OF AGRICULTURE. Mr. Williams. Mr. Chairman and gentlemen of the committee, I will endeavor to confine my remarks to the ([uestion of the constitu- tionality of this bill. With the polic\' of the bill the committee will deal as it weighs the relative considerations Mr. Jacoway (interposing). I do not know that I state the position of the other members of the committee, but as far as I am concerned— and if the other members do not agree with me they can so state — I believe that all of us recognize that tlie title to wild game is in the State, and as far as I am concerned I would like to have you address 53985—16 2 18 GAME REFUGES. your argument solely to the proposition of how the Federal Govern- ment can control this matter and make these sanctuaries a success. Mr. Williams. I will do that. First, however, let me premise by saymg that this is not novel legislation. Congress has previously enacted laws for special game sanctuaries in the national forests. For instance, the Wichita game refuge was established by Congress January 24, 1905. (33 Stat., 614.) The language of that act is very similar to the language of the bill now pending before the committee. It authorized the President of the United States to designate such areas in the Wichita Forest Reserve as should, in his opinion, be set aside for the protection of game animals and birds and be recognized as a breeding place therefor. The act then gives power to the Secre- tary of Agriculture to make regulations to carry out the objects and purposes of the act. Similarly the Grand Canyon game refuge was created by act of June 29, 1906. (34 Stat., 607.)' That act follows the Wichita game refuge act almost literally. Then there is the act of June 28, 1906. The President of the United States having previously withdrawn areas of public lands for the use of the Department of Agriculture as breeding grounds for native birds, Congress passed this act, the act of June 28, 1906. (34 Stat., 536.) It is now section 84 of the Penal Code. That act, in substance, is this: That it shall be imlawtul for any person to hunt. trap, capture, willfully dislurb, or kill any bird of any kind whatever or take the eggs of such birds on any lands of the United States vdiich have been set apart or reserved as breeding grounds for birds by any law, proclamaiion, or Executive order, except under such rules and regulations as may be prescribed from time to time by the Secretary of Agriculture. Then follows section 2 that provides the penalties for any killing of birds and the taking of their eggs on those reservations that were created by Executive order of the President, Congress by this act of 1906 recognizing the right of the President to withdraw public lands for a public purpose, namely, the protection of game and birds. There may be some doubt in the minds of some people as to whether the protection of game and birds is a public purpose, but Congress has dealt with it as such for so long a time that I doubt very much if you could ever presuade any court that it is not now a public purpose. Mr. Jacoway. Have any of these acts ever been tested in the courts ? Mr. Williams. No, sir; but they have been enforced. The act of June 28, 1906, prohibiting the kiUing of birds on reservations has been enforced, and that question has not been raised. The issue on this bill is not who owns the birds or the game. It is a mooted question whether migratory birds belong to the State or to the United States, and the migratory bird law is founded upon an entirely different theory from this bill before the committee. The Supreme Court, as Mr. Mondell has said, has set the migratory bird case for rehearing, after having had it under consideration since October 16, last, but a decision upon the migratory bird law, I ven- ture to say, will throw no light upon the issue involved in this bill before the committee. The bill before the committee is predicated not upon the power of the Federal Government to protect game as such, but upon the power of the Federal Government to dispose of and make all needful rules and regulations respecting the territory and other property belonging to the United States. That is the con- GAME REFUGES. 19 stitutional power conferred upon Congress. The word ''territory" in the constitutional provision has been stated by the Supreme Court to mean land. I am not going to cite the decisions of the Supreme Court at any length, because I wish to call the committee's attention to two opinions of Attorney General Knox in which he considered this question exhaustively from beginning to end, and this direct question was before him at the time. In his opinion of November 29, 1901, to the President, the issue, as stated by him, was this: Mr. Clifford Fincliet. of the Bureau of Forestry, in his letter to you accompauying the above note, reciuests the submission to the Attorney General of the question, in substance, whether for the preservation of the big game of tlie West the Secretary of the Interior has power fo prohibit, by rules and regulations, the killing of su<-h game within the national -forest reserves — in other words, whether he can make such reserves the refuges for game, in order to secure its preservation — and he suggests the incpury whether the act of June 4, 1897 (30 Stat., 11, 34), confers this power, as it does the power to make rules and regulations in many other respects. The question before the Attorney General in that case was whether the Secretary of the Interior had the authority under the act of June 4, 1897, which is the forest-administrative act, to forbid huntmg in the national forests. The Attorney General considered the question exhaustively Mr. Reilly (mterposing) . Does he mention the Race Horse case or any of those cases 1 Mr. Williams. I do not thmk he does, but I shall dispose of the Race Horse case. I think I can convincingly show the committee that the Race Horse case has nothing to do with this issue at all. The Attorney General came to the conclusion in his opinion that the Secretary of the Interior had no such power, because Congress had not given it to him, but he distinctly asserts the right of Congress to give him the power. Quoting from this opinion: It is true that the United States has the absolute title to and ownership of all the public domain, including the forest reservations; and ecjually true that this title and ownership carry with them the right of either absolute or partial exclusion from such lands and the right to permit intrusion thereon for such purposes and upon such terms as the owner may prescri])e. And I have no doubt that, as incident to such ownership. Congress has the i>ower, if it .so chooses, to absolutely jjrohiint the intrusion of the pu])lic into any of the public lands, or to prohibit it for certain purposes, as for cultivation, mining, cutting timber, hunting, fishing, etc. Such right of control and exclusion is incident to the ovvnershij) and is a part of that whicli the owner owns with the land. But it does not follow from this that the Secretary of the Interior may exercise this right of control which resides in the (Tovernment and may be exer- cised by Congress. He reiterates that again m the closing paragraph in the opinion, where he says: It is with regret that I reach this conclusion, as I woidd be glad to find authority for the intervention by the Secretary for the preservation of what is left of the game from wanton or unnecessary destruction, but it would seem that whatever is done in that direction must be done by Congress, which alone has the power. Mr. Attorney General Knox, in an opinion a year after to Hon. John F. Lacev, who was then, I believe, th<^ chairman of the Public Lands Committee, went into the question somewhat more exhaus- tively. In that opinion h(^ had some other issues also befor(^ him. That opinion of Attorney General Knox is reported in House Docu- ment, No. 321', volume 70, Fifty-seventh Congress, first session. It reviews the pertinent decisions of the Supreme Court upon like issues involved in this very bill. He concludes, as ho concluded in his 20 GAME REFUGES. former opinion, that there is no doubt in the workl of the power of Congress to control the hinds that belong to the Federal Government in any way it sees fit, not as a monarch — by which I assume he means that the United States, or Congress, could not provide any special privileges in any special class of people — but as a trustee for the benefit of all the people alike. I would urge the committee, since this is a very important question, to examine those opinions of Attorney General Knox, who, himself, I understand, was at that time, if not now, very much interested in the protection of game. As stated, he reluctantly came to the con- clusion that the Secretary of the Interior did not have the authority to close the national forests to hunting, but that Congress had; and in this second opinion he maps out, having been requested to do so, the general principles undei lying a bill for the protection of game on the national forests. Those suggestions of the Attorney General are in substance followed in this bill, although I may say that at the time the bill was prepared I understand that this opinion was not read in connection with it. Mr. McLaughlin. What do you mean by that; the opinion had been rendered ? Mr. Williams. Yes, sir; but I am not informed as to whether the Attorney General's opinion was looked to in the drafting of this bill, but coincide!! tally it follows pretty closely along the lines suggested by the Attorney General for a bill of this kind. Mr. Jacoway. You can leave those pamphlets 'i Mr. Williams. I will leave this copy of the Opinion of the Attorney General, Mr. Chairman. I would request the committee to procure the House report, which contains the other, as heretofore indicated. Mr, Jacoway. Is that what you have in your hand ? Mr. Williams. No, sir. This is a pamphlet containing rules and regulations published some years ago by the Interior Department when they administered the forests and they quote the opinion of the Attorney General in the pamphlet. Mr. McLaughlin. That contains only the one opinion ? Mr. Williams. Yes, sir. The first opinion is reported in Twenty- third Opinions of the Attorneys General, page 589. Mr. McLaughlin. And the other one is a House document? Mr. Williams. Yes, sir. I want to say that Mr. Mondell is absolutely correct when he states that the States have authority over the protection of game. That does not give the State a right to say that you may go upon the land of John Smith and hunt game,- for John Smith may say, "I am not going to let you come upon my land to hunt game. I want the birds here; I want them either ornamentally or I want them because they are insectivorous birds and they assist me in my agricultural endeav- ors." A State can not force any man to permit another to go upon his land and hunt. So the United States, as has been decided in abundant decisions, being the owner of the land, not only has the right of a private proprietor, but it has more than a private proprietor; it may legislate for the protection of its land. Otherw^ise it would be wholly at the mercy of the State legislatures to protect its land. Now, that does not mean that Congress can pass a law to make it a crime against the United States for a man to commit murder on the public land; not by any means. It has not the right to do that, but it has GAME REFUGES. 21 the right to so control the huuis that helong to the United States as to exclude people therefrom for whatever Congress may see fit. They have done it in regard to the protection of the public timber, water flows, and things of that nature. I might add here also that Congress has several times, in legislating for the national parks and in creating a specific national park, authorized the Secretary of the Interior to make regulations which will preserve the game and birds within the parks. Mr. MoxDELi,. Will you permit me to interrupt you right there? Mr. Williams. Certainly. Mr. MoNDELL. I want to call your attention to the fact, with which, of course, you are familiar, that in the case of national parks the States have ceded their jurisdiction. Mr. Williams. Let me say to Mr. Mondell I think that is c^uite doubtful. Mr. Mondell. It is not only not doubtful, but absolutely true. The State of Wyoming ceded jurisdiction over the lands within the Yellowstone Park and the other States have ceded juris(Uctioii to the Federal Government over the lands contained in the national parks as soon as that legislation could be secured from the legisla- tures after the parks were established. We passed a biU the other day by unanimous consent accepting the act of the State of Oregon ceding jurisdiction over Crater Lake National Park. A bill has re- cently been reported accepting the act of the State of Washington ceding jurisdiction over Momit Rainier National Park. Montana has ceded jurisdiction over Glacier National Park. The cession of juris- diction follows the establishment of a national park. In the case of the Rocky Mountain National Park in Colorado the legislature ceded jurisdiction before the park was established and it was accepted in the biU creating the park. Mr. Jacoway. That is a very important c[uestion, I think. Mr. Mondell. They are all established with the understanding that there will be a cession of jurisdiction and action generally c[uickly follows estabhshment. Mr. Jacoway. You stated a while ago that you were absolutely certain that all the States in which national parks were located had ceded or surrendered to the Federal Government their rights. Is that correct ? Mr. Mondell. Well, I think perhaps the}- have not all done so, but in the matter of the more important parks that has been done or is in process of being done. Everyone realizes that such cession is essential to the control the Nation assumes over the mitional parks. In creatmg a new national park in California I called attention hi the House a few days ago to the fact that section 2 of the act would be absolutely inoperativci until the State ceded its jurisdiction, and Mr. Mann concurred in that, and Judge Raker said that the cession of jurisdiction would foUow, tiiat the wState could not cede jurisdiction until the logislatur(> had met and the Federal Government had de- scribed the territory. Dr. IIoRXADAY. Just a word. Only two weeks ago I put to Dr. Palmer, of the Biological Survey, who follows this matter of the national parks closely, the question: "Is it true that all the States have ceded to the National Government jurisdiction over the national parks that have been created up to this time?" He said, "Up to 22 GAME EEFUGES. this timo only 3 of the States had done so out of 16." I said: "What is thc'longest period that has elapsed before that cession has been made?" He said, "As nearly as I can recall, six years, in one case. Only 3 out of 16 have actually performed that act." Mr. MoNDELL. Where we have any legislation asserting control over the game, the cession has been made. Mr. Williams. My understanding, with all deference to Mr. Mondell, is as Dr. Hornaday has stated; but that is wholly immate- rial. There is another very serious constitutional question which is raised by that, namely, whether a State can cede to the Federal Government its police power. The only exclusive jurisdiction that the United States has or can acquire over any land inside of a State that I know of is the constitutional power of exclusive jurisdiction over such land as is purchased with the consent of the State for its magazines, forts, arsenals, dock yards, and other needful buildings. There is therefore the constitutional question involved as to whether the State can confer upon Congress the right to protect game. The Supreme Court of the State of Washington has very recently held that it could not do so. (State v. Towessnute, 154 Pac, 805.) But that is beside the mark. No States have ceded any jurisdiction to Congress to set aside the national forests or to regulate grazing and various things on the national forests, and it never has been claimed, with any confidence, that such a cession was necessary. I will refer here to a decision by Federal Judge Dietrich, of the dis- trict of Idaho (United States v. Regginelh, 182 Fed., 675), in which he held in an exhaustive opinion and one full of good learning that a regulation of the Secretary of Agriculture prohibiting the locator of a mining claim from selling liquor or conducting a saloon on the mining claim within the boundaries of the national forest was within the power of the Secretary of Agriculture to make, and that the locator of the mine had no right to sell liquor thereon, although it might be perfectly legal elsewhere in the State to sell the liquor. Mr. Jacoway. Is not that under the theory that the fee to the mine always rests in the Federal Government ? Mr. Williams. Yes, sir; I am merely talking now about Congress regulathig various things upon lands that belong to the United States. That is true. In that case he decided that the lands be- longed to the Government, because the ultimate fee, the reversion- ary interest in this claim, was still in the United States, and as long as' it was the locator of the mine could do nothmg upon that land if the Government said he could not, except to develop it as a mine, thereby holding that the Congress could regulate the occupancy and use of even a subsisting mining claim in a national forest and pro- hibit the sale of liquor thereon if it saw fit, even though the sale of liquor elsewhere in the State was perfectly legal. The organic act for the creation of the national forests has been held by the vSupreme Court to be constitutional in the case of Fred Light V. The United States (220 U. S., 523), where the Supreme Court, in sustaining the power of the Secretary of Agriculture to make regulations forbidding a person to permit his cattle to drift over upon the forest, said — I will merely give the substance of the decision on this question: GAME REFUGES. 23 The United States can prohil>it absolutely or fix the terms on which its i>roperty may be used, and can withhold or reserve the land iudefinitely, and this without the consent of the Slate in which it is situated. The confusion that arises in the consideration of the question involved in this bill now before the committee grows out of the Race Horse case and the Geer case. I should like to state to the com- mittee very briefly just what those cases uivolve. Mr. Jacowav. It constitutes who shall exercise jurisdiction over a crime or misder.ieanor ^ Mr. Williams. That the State may regulate the hunting of game. Mr. Jacoway. Both of those cases were not upon that point ^ Mr. Williams. Yes, sir. That does not mean that the State can give a man the right to go upon your land and hunt game. Mr. MoNDELL. Has anyone contended for any such right anywhere at any time ? Mr. Williams. Such is the effect of claims that have been made. Mr. MoNDELL. You say that it does not give the State the right to allow people to go on land contrary to the will of the owners. No one has contended anywhere at any time that the State had any such right. That is not a question involved. Mr. Williams. How can you contend, then, that the State has the right to put people upon the Federal lands i Mr. MoxDELL. Nobod}^ has suggested that the State has that right on Federal lands. Mr. Williams. I understand you to say that Congress has hot the right to close these areas and prohibit people from hunting on them, and that this bill proposes to do so. Mr. MoNDELL. That is a very different proposition. They are asserting that the Secretary of Agriculture claims that the State has the right to send people onto the land 'I Mr. Williams. I did not mean to say that. Mr. Mondell. You said that two or three times. Mr. Williams. That is the inevitable result of the clami that is made. If you say that the Federal Government has not the right to prohibit people going on Federal land to hunt game tlien it must follow that they have the right to go on there to hunt game. Is not that the inevitable conclusion ? It would certainly seem so' to me. Mr. Jacoway. You stated a while ago, as near as I can use your ex- act language, ''I concede the position taken by Mr. MondeU in which he asserts that the States have complete jurisdiction over the game of the State." Mr. Williams. The protection of the game of the State; that is abso- lutely true. Mr. Jacoway. That is what you meant ^ Mr. Williams. Yes, sir. Mr. Jacoway. Then, in order to carry out the provisions of this bill, as I understand, the only way you would ^et control is for the Govern- ment to say, ''This dommion here is Federal Government land, and we will prohibit trespass upon it, without any intention whatever to exercise any jurisdiction over that which the State now owns, to wit, the game." Is that your opinion ? Mr. Williams. If you mean that the fee simple relates to the land- Mr. Jacoway. No; I am talking about game. 24 GAME REFUGES. Mr. Williams. Yes Mr. Jacoway. If that is so, do you concede that the Federal Gov- ernment in attempting to control these sanctuaries is doing something indirectly that it can not do directly ? Mr. Williams. No; I do not concede that at all. I will tell you why. When I say that the State has complete jurisdiction over the protection of game I mean that the State can prescribe the seasons in which the game may be killed or may not be killed within the borders of the State, including the land of the United States. It may say, "This is the open season" and "This is the closed season," and nobody has the right to kill game contrary to the seasons. Ml'. Reilly. The State regulations might say that you could kill game on all the public land in July and the United States might come along and say, ''You can not kill it on this land." Mr. Williams. Absolutely. Mr. Reilly. The State has not a])solute control of the game ques- tion ? Mr. Williams. Yes, sir. Mr. Reilly. It is limited ? Mr. Williams. No, sir. Mr. Reilly. Wlien the United States does not stop it, that is all? Mr. Williams. Wlien the United States does not stop it, yes, sir; it has full control of the game, so far as prescribing the seasons, but it has not complete control over the game on your land in your State so as to say that a man may go upon your land in July and kill game wdien you say you do not want him to do so. Mr. Reilly. That is true. Your own State has control subject to the right of the individual ? Mr. Williams. That is the issue precisely. Mr. Reilly. The State also has control subject to the right of the United States to come in and say "You shall not hunt on these lands?" Mr. Williams. Exactly. Mr. Reilly. From your study of the case, is there any difference between the ownership of the individual and of the United vStates ? Mr. Williams. The only difference is that the ownership of the United States is more complete than the ownership of the individual, because Congress can legislate for the protection or for the adminis- tration of the public lands, while the individual proprietor is depend- ent upon the action of the legislature for protection of his lands from criminal trespass. Mr. Reilly. And that is where you and Mr. Mondell differ? Mr. Williams. Yes, sir. Mr. Reilly. Mr. Mondell claims that there is a limitation upon the United States that is not on the individual? Mr. Williams. As to game. Mr. Mondell. I do not think that I said there was a limitation on the OMmership of the Ignited States that was not on the individual, although that is true. It has been held by the courts, but not in matters affected by this bill, that the authority of the Federal Government, within certain lines, is broader than that of the individ- ual. The individual can prevent trespass and injury to his property under State law. He can compel a party to get otf or to remain off his land, but he can not prescribe the punishment for the trespass GAME REFUGES. 25 if he goes on. Now, the Federal Government, the courts have said, may prescribe the punishment for trespass on or the injury of its property, but when the Federal Government provides punishment for the killing of game, it is not pro^•iding a punishment for the ])ro- tection of its property, it is attempting to legislate touching property of the people under the control of the State. Mr. Jacoway. Is it your position that the Federal Government has at all times the right to exercise this jurisdiction claimed by you, but that it is held in al)eyance until it sees proper to exercise it ? Mr. Williams. Exactly; and until Congress acts, of course, a man may go upon the public land and hunt just as they used to go on the public land and graze their cattle until Congress said, ''You must not do it, unless you comply with the regulations of the Secretary." Mr. Jacoway. In the grazing proposition the Government owned the land and the grass ? Mr. Williams. Yes, sir. Mr. Jacoway. But in this case it does not own the wild game? ]\[r. Williams. I will not say that it does not own the wild migra- tory game, for this reason: As I tell you, that question is involved in the migratory-bird law at the present time, and whatever m}' individual opinion may be about that, I can say to you that there are a great many able lawyers all over this country who are of the opinion that the title to the wild mio;ratory game and birds is in the United States.1 So that is not a foreclosed question, and the Supreme Court evidently is very much in doubt about the question, because, after considering the matter for about five months, the}' have restored the case to the docket for reargument. Mr. Reilly. Do you not think you should qualify that statement b}' stating that the Government has absolute and complete control over the game within its hmits ? Mr. Williams. Every general statement necessarily must be some- what qualified, because there are always other considerations Mr. Reilly (interposing). Is it not true that the State has abso- lute control of the game within its own limits, and can legislate with regard to the game within its own territory ? Mr. Williams. That is the proposition, precisely, and that is what I mean to say. Of course, I do not mean to say that the right exists to permit B to go upon a private individual's land and hunt on that land whenever he sees fit, because the private individual may say he will not have B hunt on his land at all. I think that while the United States may exclude people from its land for the purpose of hunting game it can not confer upon an individual the right to hunt upon those lands at any time or in any manner prohibited by State law. The regulations issued under the statute of 1906. which I read to you, make it an offense to kill l)irds or take their eggs on Federal bird preserves created by Executive order. In that act there is a f)rovision that the Secretary of Agricidture may make rul(>s and regu- ations for the administration of those preserves, and the department has made a regiUation permitting the agents of the Department of Agriculture, and collaborators with the Department of Agricidture, to take birds on these preserves for the uses of the department, for scientific purposes, consistent with the laws of the State in which tlie preserve is situated. In other words, the Secr(^tarv does not claim that he has any right to say that a man may go ui)on a Federal birtl 26 GAME REFUGES. preserve and kill woodcock if the State has said that woodcock shall not be killed for 10 years. Mr. Reilly. Then you. claim that the United States Government has the right to interfere only as to making the closed season longer and that it can not interfere with the open season at all ? Mr. Williams. That is it exactly. Mr. Reilly. I do not see any reason for that distinction. 2dr. Williams. It is the same distinction that is made with regard to the private owner. He has the right to say that 3^011 may come upon his land and hunt for six months, even though the State has prescribed that you may hunt for nine months in the Stale. You would not have the right to go upon that man's land and hunt for more than six months if he so decreed, even though the State law permitted hunting for nine months. The public lands in these national' forests are the property of the United States in much the same sense that the property of an individual is his property, and the United States may regulate the disposition and the use of them in any way that it sees fit. Mr. Jacoway. You can carve out a smaller period, but you can not carve out a period greater than the whole period prescribed by the State. Mr. Williams. Exactly. If the State says that a man may hunt deer for six months in the year the owner of the land may say, ' ' I will let John Smith hunt deer on m^^ land for three months in the year." He has a perfect right to do that or he has the right to say, ''I will not let him come here at all to hunt," or he has the right to say, "I wiU let him hunt on my land for the full six months." And that is all in the world that this bill claims and it is all the jurisdic- tion that the Federal Government is asserting in this bill. It is the same jurisdiction that is asserted, as I have cited to the committee, in previous acts of Congress. Mr. Reilly. Then your claim is that the bill is along the line of assisting the States in conserving the game or controlling it ? Mr. Williams. Yes, sir. Now, whether it is a wise thing for the Federal Government to do this or whether it ought to be left to the States to do this is another question. I agree with Mr. Mondell that any State in this Union can draw a ring around the public lands of the United States and make them a game sanctuary. Why ^ Not on any theory that the State has exclusive jurisdiction over that land for the protection of the game but on the theory that it has jurisdiction over the protection of game as such and it can forbid the shooting of game in any section of the State that it sees fit, on the public lands if it sees fit to do so; but that does not negative the power in Congress to say also, "You shall not hunt any game on certain designated areas of public lands." Mr. Jacoway. In your judgment could the State say it was going to prosecute you for trespassing on the public lands ? Mr. Williams. No; it would say, "We will prosecute you for kill- ing a bird." That is all. And 1 doubt not — I may be incorrect about it — that the Federal Government could go into the State courts and prosecute a man for trespass on the public lands if there was any^ State law forbidding him to trespass upon another's land. But, of course, those cases are always brought in the Federal courts. GAME REFUGES. 27 Mr. Jacoway. That is one of the cases where there is a choice of two jurisdictions. Mr. Williams. Yes, sir. Mr. Jacoway. And there are lots of those cases. Mr. Williams. Yes. The State has the undouhted right to say that the game within the State shall he shot during certain periods of the year or that it shall not be shot during certain periods of the year or during several 3^ears, and such a law would be oi)erative over the public lands of the United States, and nobody can go m there to hunt otherwise than in accordance with those provisions. The Fed- eral Government may say that a man may go there, but that he shall not violate the State laws. Or it may say what any private individual has the right to say with regard to his land, " Yoii can not go on these lands to hunt, because we do not want any hunting on these lands." Mr. Reilly. The United States simply has the right to make that closed season closer ? Mr. Williams. It has the right to say that you shall not come on there to hunt at all at any season of the year. Mr. Reilly. It could also say, if the State permits hunting for six months, that a man can only hunt on the lands for three months? Mr. Williams. Yes, sir. ^Ir. Reilly. In other words, the United States Government only has the right to make that closed season closer? ^Ii\ Williams. Yes, sir; that is right. The Secretary of Agricul- ture in makmg rules and regulations under this bill, if it is enacted, may say that a person might go upon these sanctuaries in the forest, reserves to hunt for half of the period prescribed by the State law, and a man would have the right to go in there and hunt for that period and for no longer. I want to impress upon the committee again that I do not claim that Congress can say to anybody that they may go upon the public lands and hunt game during the closed season prescribed by the State law. To that extent the State law is supreme and there is no ciuestion about that. This bill does not attempt to do anything like that; if this bill should be passed our regulations will have to be fitted in with the State laws; we can not allow anything greater than the State laws allow, and that is the whole theory of this Federal regulation of the protection of game. Mr. McLaughlin. It is conceded, I believe, that the Federal Government has the right to do anything that is necessary for the protection of the national forests ? Mr. Williams. Yes, sir. Mr. McLaughlin. Or the public domain ? Mr. Williams. Yes, sir. Mr. McLaughlin. Would it be reasonable to say tliat the Gov- ernment ought to have the right to protect the game, that the game is just as much necessary for a proper park as trees and grass ? Mr. Williams. Absolutely so. Mr. Elliott. The general welfare ? Mr. Williams. Xo; the general welfare has nothing to do with it at all. Mr. Jacoway. Have you embodied in your remarks all that you want to sav ? 28 GAME REFUGES. Mr. Williams. I think I have stated all that I desire to state to the committee. Mr. Jacoway. If not, we want you to go ahead, but we have some other gentlemen who desire to be heard. Mr. Williams. I merely want to add this in closing, that the Supreme Court of the United States has praeticallv ruled, in the Mid-West Oil decision (236 U. S., 459), upon the right of the Presi- dent to withdraw from entry under the public land laws certain areas of land for the purpose of protecting the birds on there. In other words, the Supreme Court has practically ruled upon the validity of the act of June 28, 1906, forbidding the kiUing of any birds on these lands of the United States set aside for the use of the Department of Agriculture. Mi\ Jacoway. Is not this the turning point in all of those cases: That the Government reserves the fee in those lands and that the fee never passes from the Federal Government to the lessees ? Mr. Williams. Absolutely, and it may control that fee. Mr. Jacoway. But the ownership to the birds and wild animals is in the States, according to your contention ? Mr. Williams. No ; all of the decisions of the courts say that such property as exists in wild things flying through the air is in the legisla- ture of the vState in trust for the benefit of the citizens of that State, and it may, under its police power, regulate the killing or capturing of them as it sees fit. There is no property question in game involved in this at all. This bill is not predicated upon any property in wild game being in the United States, but it is predicated upon the property in the public lands being in the United States, and it has the right, like an indi- vidual has the right, to say ''No one shall come upon these lands for certain specific purposes." But even the right of ownership of land is subject to the power of the State, to its power of eminent domain, the power to send officers of the law in there to stop riots and things of that kind. Those are necessary limitations upon the individual's right, but he may say that no man may go upon his land to hunt if he wants to do so. There are statutes in every State, I suppose, prohibiting people from going upon private land if the owner posts a notice forbidding trespass. But the idea of the fee being in the United States, as regards the public lands, really has no bearing upon the question of whether there is any property in the United States as to wild birds. Congress is not legislating about this thing on the theory that it has any right to legislate solely for the protection of the game as such, but it is on the theory that it has the right to control the lands of .the United States for such purposes as it sees fit, and that it has that power is so abundantly shown in the decisions of the Supreme Court that I do not see how the committee could come to any other con- clusion than that Congress has the right, not only that it is proposing to assert now, but that it has already actually asserted, as I pointed out in my opening remarks. I am very much obliged to the committee. GAME REFUGES. 29 STATEMENT OF DR. WILLIAM T. HORNADAY. The Chairman. We will now hear from Dr. William T. Ilornaday, of New York. Doctor, won't you please state to the committee some- thing about your position, and the nature and extent of your interest in wild animals. Dr. HoRXxVDAY. With pleasure, Mr. Chairman. Officially I am the director of the New York Zoological Park, which is under the manage- ment of the New York Zoological Society. One of the declared objects of that society is the protection of our native animals, and during the whole of my 20 years in the service of the society I have been active m that work. For all that work, however, I receive no extra compensation. Even if the Chamberlain-Hayden bill should become a law, and 100 game santuaries were made by it, it would not benefit my personal fortunes by so much as the price of a good cigar. My Vanishmg Wild Life book was furnished to all Members of Con- gress in 1912, by the Zoological Society. The Chairman. As I understand it, in this partciular matter you are actmg for a number of philanthropic persons who desire the per- petuation of our wild life. Dr. HoRNADAY. Precisely. I particularly represent the 70 persons who have created what is known as the permanent wild life protection fund, and that fund is defraymg all the expenses of my efforts m behalf of the game sanctuary cause. It was that fund which made possible my trip westward last September and October, in the course of which I visited and lectured in every State west of the Great Plains except Nevada, which I was unable to reach. This proposal for game santuaries in national forests is by no means a new idea. No one can say who first thought of it, or who first pro- posed it. I thmk that the idea is as old as the first national forest. We do know that since 1902 several bills have been mtroduced in Congress to provide game refuges m national forests, and perhaps it is well to state why all of them have failed. In my opmion they failed to make progress because they were too brief, and too mdefinite. They left entirely too much to executive discretion; and more import- ant than all else, they failed to take into account the grazmg and agricultural mterests, and the mterests of the States concerned. In framing the bill now before you, the half dozen gentlemen con- cerned in it endeavored to avoid the mistakes of previous bills. They endeavored to be absolutely specific in practically everything, and provide for a clear understanding. They took care of the interests of the sheep and cattle owners, and they did it so well that instead of now opposing us, the sheep and cattle men are our friends. We provided tnat the governor of each State concerned should have an absolute check upon every sanctuary proposal, by which he can amply protect the interests of his State. In planning my own campaign for this cause, it at once became evident to me that this is largely a western proposition, because the bulk of the national forests are west of the Great Plains. It seemed to me that the question of "to be or not to be" is one to be decided by the people of the West; and it was because of that feeling that I finally spent seven weeks in a long and laborious trip westward, 30 GAME EEFUGES. in which I met many representative men and women face to face. In each one of my 23 addresses I said : This is a question to be decided by the people of the West. Do you wish these game sanctuaries, or not? If you say that you do not, I, for one, will drop the whole matter instantly. Mr. Chairman, the most thoroughly representative people of the West have said that they do desire these sanctuaries. To save busy Members of Congress from being burdened by a vast number of letters requiring answers, I devised a new plan. The friends of this cause circulated cards stating the terms of this game sanctuary plan, and inviting declarations in writing of approval and support. I did not circulate those cards myself; not at all. I handed them out in bulk. Recently I have placed in the hands of all the Members of both Houses of Congress my red Bulletin No. 2, stating the whole case, and giving, State by State, the names and addresses of the representative men and women who believe that the Chamberlain- Hayden bill should be translated into statute law. The millions of people in the East who believe in game sanctuaries — and are making them just as fast as they can — have not been asked to come forward and rush this cause through without regard to the views of the people of the West. The support that I am now offering you in behalf of the Hayden bill is distinctly and almost wholly western support, from the States in which the largest national forests are located. Mr. Chairman and gentlemen, going back to the remarks of the gentleman from Wyoming, I am proud and thankful to say that the United States Government has done much in the setting aside of bird sanctuaries and game preserves for the preservation of wild life in this country; and up to this time we have yet to hear of a single case wherein the United States Government has been asked to undo any of those acts. It is quite true that a good many bird sanctuaries have been created, as Mr. Mondell has said. And what are they, and of what do they consist ? On one hand they consist of outlying islands on our seacoasts, unin- habited and unusable, and on the other hand, a very, very small number of interior lakes, the total number of which is exceedingly small, that constitute important restmg places and breedmg grounds for migratory wild fowl. Now, it may be that something calamitous will occur to the people of this Nation on account of the establishment of the wild-bird sanctuaries that have been established in this horrible, this nefarious way, but we await the arrival of such a catastrophe with entire complaisance. Any city that gives up any part of its public parks for commercial purposes would nowadays be considered on the decline, and the time never will come when the United States Govern- ment, or in my opinion, any State government, will be called upon to yield up to commercial purposes any one of its bird sanctuaries, or its national parks, or game preserves. I propose to treat this whole question whoUy as a matter of expediency. I am perfectly satisfied, and even delighted, with the presentation of our side of the case which Solicitor Williams has made. It seems to me to leave nothmg to be desired. The whole question hmges on whether or not the United States Government GAME REFUGES, 31 may be penalized as an owner of public lands, any more than a private individual. We have assumed that the United States Government has as much right to own land, and as much right in the land that it owns, as any private individual. There is no man who for one moment will question the right of any individual in any State to inclose his land, either with a fence or line, and say, ''This is a game preserve, m w^hich no killuig shall be done." Mr. Williams has well pohited out to 3'ou the fact that the Government is not seeking to regulate the killhig of game in national parks. Gentlemen, the Hayden bill is a constructive proposition, and not a destructive proposition. If it were destructive, if it were m anv sense providing for the further slaughter of any game, I would not be here to-day. I am sick and tired of trymg to provide game to-day for sportsmen to go out en masse and slaughter to-morrow. I am seekmg to be the humble means of putting before Congress the wishes of the people of the West in regard to this matter. After 30 years of more or less constant devotion to the study of the interests of the wild life of our Nation, and to efforts to promote the interests of our wild life, not only for the people of to-day but for posterity, I am obliged to say that my information and my impres- sions regarding the status of big game at this moment, in all the States west of the Great Plains, and the impending future of that game, are entirely opposed to the impressions of the gentleman from Wyoming. Mr. Mondell says that the game is increasing in many of the Western States. Now, I have just completed a tour of all the States west of the Great Plains except the State of Nevada. I have talked with State game commissioners. State game wardens, State officials, members of sportsmen's clubs, hunters who are not members of sportsmen's clubs, and with friends of wild life everywhere. Gentle- men, let me assure you that the people of the West do not share Mr. Mondell's optimistic views regarding the status of game in the West. I can not point to a single State in which I was informed that game was increasing. I believe that the only instances in which big game in the West is really increasing on public lands are those in national parks and preserves. It is quite true that Wyonung has preserved the elk, but it has been solely tlii'ough the medium of a national park, which is a Federal game preserve. If it had not been for the Yellowstone National Park Mr. MoxDELL (interposing). Of course, we do not agree to that We deny the accuracy of that sort of statement. Dr. HoRNADAY. I know you do, but I am stating my point of view." I say to this committee that had it not been for the Yellowstone National Park as a Federal ^ame preserve and a breeding ground for elk, there would not be one living elk in Wyoming to-(hiy. I think I could submit to you, if it were necessary, the facts to bear out that assertion. What did Wyoming do with the Big Mr. MoxDELL (interposing). We still have elk in the Big Horn, and hi the Medicine Bow, which are from 200 to 400 miles away from the Yellowstone National Park. Dr. IloRXAUAY. I was just going to speak of the Big Horn. The big game of the Big Horn Mountains was absolutely exterminated, 32 GAME REFUGES. and no elk remained there; and then what happened ? They brought in some elk from the Yellowstone National Park, and restocked it. Mr. MoNDELL. Not from the Yellowstone National Park, but from Jacksons Hole. Dr. HoRNADAY. Well, it was from the Yellowstone herd. I am glad you mentioned that. The Big Horn Mountains furnish one of my object lessons. The State of Wyoming permitted the extermination of the Big Horn elk, and there was nothing left there at all. That shows how well the State of Wyoming has preserved its wild game. Mr. MoNDELL. Mr. Hornaday, will you allow me to interject into your remarks a statement to the effect that I know as a matter of personal knowledge that the elk never were entirely exterminated from the Big Horn Mountains. Dr. Hornaday. Well, all I can say to that is that I was informed for years that no elk remained in the Big Horn Mountains. I never went there to see. I accepted the statements of men of Wyoming. Now, that is what happened. I think that even Mr. Monclell wul admit that the elk of the Big Horn Mountains were reduced practi- cally to the point of extermination. Mr. MoNDELL. The herd was very greatly reduced, as is usually the case in the first years of settlement of country like that, when everybody is carrying a rifle. It always happens that way. Dr. Hornaday. Now, that very same thing w^ould have happened to the elk of the Yellowstone National Park but for that national breeding ground in which those elk could bear and rear their young absolutely unmolested. Wliat happens when those Yellowstone elk go over into Idaho in the fall ? They are met with a fusilade of rifle shots as they struggle through the snow. I know an instance of a whole herd having been exterminated in two days. You have all heard of those that recently went north into Montana, and what happened when they got there. Now, that is the spirit of the West; and that is what is making all this trouble. The State legislatures alone can not cope with that spirit. The State legislatures, throughout the entire West, are largely under the influence of the men who hunt big game; and when it comes to enacting legislation for the protection of big game, the sportsmen go to the legislatures, in representative bodies, and say, for example, "No; we do not want you to put a 10-year closed sea- son on the big-horn sheep. We think there are enough big horn yet, and we can continue to hunt them." Those legislatures are very often afraid to act contrary to the suggestions of the sportsmen. That is perfectly understandable. The men of the West have come up with the feeling that the game will always last. For 40 years that was the feeling there — that there was so much game that it would always last. But let us come back to the State of Wyoming. I hunted sheep and elk in the Shoshone Mountains in 1889, and if I went there now I would not find elk or sheep within 50 miles of my old hunting- ground — to put it at a low figure. The people of Cody are lying awake nights, Mr. Mondell, trying to think of a way by which they can get elk around through the Thoroughfare country into the Sho- shone Mountains. I have had plenty of correspondence with the men of Cody who are wrestling with that problem. The country GAME REFUGES. 33 there is almost destitute of big game. The hunters north of Cody have to go south of the Yellowstone National Park to hunt elk. Several men whom I know, and of whom I was one for four years, have been petitioning and bogging the legislature of Wyoming to give the remnant of the mountain sheep of that State a 5 or 10 year close season, so that they will not become exterminated. Three years ago one of the best guides in the State of Wyoming, of the firm of Frost & Richards, was in my office, and we discussed the problem and the prospects of the mountain sheep in Wyoming. He said, ' ' If any of your friends want to hunt mountain sheep in Wyom- ing they had better be coming pretty soon." I said, "How many mountain sheep do you believe there are on grounds that can be hunted in the State of Wyoming to-day?" He said, "Well, there are not very many." I pressed him for a definite answer; I asked him to name a figure and finally he said, "I do not believe there are over 100." Now, that was a guide from Cody. Mr. MoNDELL. Mr. Frost was seeking a job. Dr. HoRNADAY. Up to tliis moment the State of Wyoming main- tains the right to hunt her pitiful amount of mountain sheep, and I fear the legislature wiU. maintain it until the last sheep is dead. Now, that is what it means to influence M^estern legislatures in these States. The State of Wasliington is doing the very same thing. Last year we chd persuade the Legislature of Montana to put a three- year closed season on mountain sheep and goats. Montana is now almost destitute of mciintain sheep and goats. Mr. MoNDELL. Dr. Hornaday, in view of what our State has done in the matter .^.f moose and elk, it can not be possible that the legisla- ture would not respond to any reasonable request for a close season on mountain sheep. I am not familiar with just the character of the re- quests that have been made, but I do know the frame of mind of the people of my State. Dr. Hornaday. I will say to the gentleman from Wyoming for his information that last winter and two years before that I sent to each member of the Legislature of Wyoming and to the governor of the State a special ])etition in behalf of the better protection of the mountain sheep by a long close season. I did that myself. I put the matter before a nund)er of sportsmen of Wyoming, particularly of Sheridan, and the association of sportsmen at Wolf, and the}- did the same thing, but all to no purpose. Mr. MoNDELL. That proposition has never come to Congress, of course. Dr. Hornaday. ^Ii-. Mondell has mentioned the moose of Wyo- ming. I am very glad to be reminded of that. It is a very useful object lesson. About 10 years ago it was discovered that there were moose in the southwestern corner of the Yellowstone National Park. It was counted as a fine discovery, because everybody thought they were extinct. But they were breeding in that sheltenMl corner of the Yellowstone National Park, from which they did not migrate at that time. Mr. Mondell. Dr. Hornaday, have you ever been there person- ally ? Have you ever be(>.n in that region? Are you sjieaking from personal knowledge ? 53985—16 3 34 GAME REFUGES. Dr. HoRNADAY. No, sir; I am speaking from the testimony of Mr. George Shiras, 3d, who has been over every portion of that section of the comitry. He laiows a good deal more about it than any other man Uving. Mr. MoNDELL. George Shiras went into that country at my sug- gestion. I told him of the moose along the upper Yellowstone River in and south of the park, and how the State of Wyoming had been protecting them. Wyoming had been protecting the herd for years before Mr. Shiras went there at my suggestion. I know that coun- try thorouglily. I have been over it frecjuently, and most of the moose in that region and most of that moose country is in the part of the State of Wyoming south of the park. I am surprised to hear it suggested Mr. Shiras or anyone made a discovery of moose in that section 10 years ago. We have known they were there and pro- tected them. Mr. Jacoway. Mr. Mondell, suppose you let Dr. Hornaday finish his remarks, and then we will give you another chance. Dr. Hornaday. I was proceeding to say that the moose were dis- covered in the southwestern corner of the Yellowstone National Park. That was the first information that came to me. I followed that up subsequently by every means in my power. Of course it is possible that some of my information was wrong. It would be strange if it were not. I have become anxious to see the moose become a permanent resident of the Yellowstone National Park. Mr. Shiras made an extensive exploration for moose about three years ago, and most of his work was done in the Yellowstone National Park. His articles were published in Forest and Stream, all of which is a matter of record. Now, the moose have increased and spread into State territory outside of the Yellowstone National Park, and, more is the pity, the State of Wyoming has recently granted an open season on that remnant of moose. In my opinion it is little short of crime to make war upon that little herd of moose there, where they are strug- gling against extermination, simply in the name of "sport." Mr. Mondell. At the reques-t of eastern sportsmen they allowed the killing of 50 moose in one year. Dr. Hornaday. I do not believe that any eastern sportsman worthy of the name ever preferred such a request. If one has ever done so, I would like to have his name. Now, take another State, the State of Colorado. Colorado has been for years quite a good game-protecting State. She had in the first instance a magnificent stock of big game. It included prac- tically all s])ecies of big game common to the "West, both of the moun- tains" and the plains, and what is the situation to-day? I remember that in 1900 the question of the deer as a food supply was brought to my attention by the slaughter of about 8,000 black- tail deer for food in Routt County. Now, 8,000 blacktail deer made a pretty good item m the food supply of that portion of Colorado in that year. But what is the case to-day in Colorado in regard to huntmg big game ? The big game species of Colorado have so completely disappeared, as game to be hunted, that to-day the State game commissioner, Mr. W. B. Frazer, publishes the fact that there is "no open season on deer, elk, mountain sheep, antelopes, wild turkey, quail, or pheasants," GAME REFUGES. 35 The buffalo is not montioiuHl, l)cc in the Ozark National Forest, no matter how small some of them may bo. In addition to that, I think that the State owes it to the Nation to make a State game sanctuary in the great feeding grounds and nesting grounds for ducks known as the Sunk Lands, m the northeastern corner of the State. It is high time for Arkansas to bo thinking seriously about per- petuating her game for the benefit of her people -to-day, to-morrow, and a hun(h-ed v^^ars hence. ^/^ The wild-life laws of Arkansas, like those of every other State iiitlie Union, always have been too liberal to the hunters of game and too hard upon the game. They have borne especially hard ujion the waterfowl. About four years ago— possibly it was five— a well- organized and very determined off ort, headed by Mi'. E. A. Mcllhenny, of Louisiana, was made to correct the whole situation and properly conserve the game of the State. A new code of game laws was drafted and put before the legislature. Good men and good news- papers in Arkansas strongly urged its enactment into statute law. But, as so often has happened in other States, the majority in the legislature was heedless and indifferent, and the whole campaign ended in a dismal and disappointing failure. A great opportunity was lost. 36 GAME REFUGES. I am not going to speak much longer, gentlemen, but I do wish to say this : I regard this measure as virtually the last call for bringing back and maintaining a real supply of big game in the national forest States. Throughout my long western trip last fall the feeling that prevailed among the men whom I met who are interested in this sub- ject was universal pessimism. In the wState of Idaho, for instance, at Pocatello, a leading citizen said, hopelessly: "Oh, what is the use? The game is just as good as gone already, and there is no use in trying to save it. What is the use?" I know that the only way to really bring back to the States of the West a good supply of big game, and maintain it on a basis of legiti- mate sport, is for the Federal Government to step in and do what the States have not done and can not do. On one hand the trouble is with the old spirit of killing as long as there is any game left to kill, and on the other hand it lies in the State legislatures, which do not wish to antagonize large bodies of State sportsmen. That is only natural, perfectly natural. In every State that contains game, without any exception so far as I know, there is now no increase in big game except in actual game preserves. The State of Maine, which was supposed to be impreg- nable so far as the supply of deer is concerned, now reports through Maine sportsmen that the deer of Maine are rapidly decreasing. We once thought that the laws of the State of New York were so good that we would always have a fine supply of game in the Adirondacks. The count of the deer seen in the Adirondacks last year revealed the fact that we have only a fraction of what we supposed we had. In the face of that situation, what is going on in New York? What is happening, on the one hand, among the people who kill and, on the other hand, in the legislatures of our States ? The guides of the Adirondacks are insisting that ''the buck law^," which provides that no female deer shall be killed, shall be repealed, and that the killing of female deer shall be made legal. That idea started as soon as the buck law was placed on the statute books, and it has persisted ever since. It culminated at the last session of the New York Legislature, and I assure you that it would be difhcult to describe the vigor and determination of those guides in their attempts to brmg back the killing of female deer for sport. We had a tremendous fight in the last legislature. The cause of the deer was championed by every important wild-life protective association in the State of New York; and that means a good deal. I will not take up your time in giving the names of the national and State organizations who sent their officers to the legislature to fight the Kasson bill. After a great hearing we were told by a joint committee of the two houses that the Kasson bill was dead. The champions of the deer made such a good showing that everybody thought the bill was dead. And then what happened ? The politicians got busy; and when politics enters into wild-life protection, wo get beaten. The first thing we Imew that bill was quietly slipped through the assembly; but when it came to the senate it was beaten by a good majority. That was on the day before the session closed. We thought everything was safe; but m one of the last hours of the session the speaker of the assembly came down from his high office, put on his gum shoes, trailed over to the GAME REFUGES. 37 senate, and secured the reconsideration and passage of that odious Kasson 1)111. Mr. Jj^LLioTT. And then what happened ? Dr. HoRNADAY. They had a "quick roll-call"; and the report of the clerk showed 48 men out of 50 as having voted for the bill. Onlv 6 of those 48 would testify that they had voted for it. A number of senators said they did not know the bill had been brought up at all. One senator, whom I know very well, was asleep in his hotel when the bill was passed, but he Wcxs marked as voting "aye." After that there was just one recourse — the governor of the State, We made representations to Gov. Whitman, and in a ringing mes- sage he vetoed that bill. New York State Wi:.s saved the disgrace of putting such a law upon the statute books. But it was not due to the legislature. Ordinj'-ril}" in wild-life protection the legislature of the State of New York is not only as good as the best, but very often it is better. But that is one time wherein they wont back on their good record. Now, if I thought for a moment that the Str.tes which enjoy the possession within their boundaries of national parks could and would handle this question successi'ul'y, I Axouid not be spending my time here, and I would not have devoted nearly a year's hard work, all of my spare time, I might sv.y — to this cause, Mr. Mondell has stated to you that he has had no request from any of his constituents asking him to support this bill. I think that the gentleman from Wyoming ought not to convey to you the impres- sion that the people who have pledged their approval and support to this })ill did not know what they w\ re doing. The people whose names appear in this list, in my Bulletin No, 2, are not people of the character who do things in matters of this kind simply through good nature, I took the trouble to go to Wyoming, and make an address in Cheyenne, and the newspapers contained a good deal of information about this whole matter. It was discussed in various ways and finally the people of Wyoming, of their oA\ai volition, circulated those printed cards giving the terms of the plan, and asking for signatures. Let me read you the names of some of the officers represented in this list. Fii"st, there is the governor; theii the secretary of state, the deputy secretary of state; Mr, Richard A. Scolt, justice of the suprenu^ court, and the clerk of the supreme court; the State superintendent of public instruction; the secretary of the State board of livestock com- missioners, who surely ought to be interested in this question, if anybody is; the commissioner of public lands; the chief clerk of the commissioner of public lands; the adjutant general; the assistant com- missioner of public laiuls; State Senator Hall; State Game Warden Wilson; Assistant Game Warden Sorenson; the secretary of the treas- ury, Mr, Millard, of the Wyoming State Board of Sheep Commis- sioners, etc. Here are the names of people inhabiting probably 25 cities and towns in Wyoming. All told, there must be at least 850 names of Mr. Mondeli's constituents printed here as having read over the Hornaday plan, of having approved it in writing, and pledged to it their support. That showing of public interest and support has been not quite dupUcated in other States, because it is not every State that is as 38 GAME EEFUGES. much in favor of this Hayclen bill as is the State of Wyoming. But there are others that are mighty good seconds. The question of general expediency is worth a moment's considera- tion. I am now going to ask you to do, for a moment, a very remarkable thing, and that is not to consider the records of legal decisions and precedents. I am going to ask you to go back with me to the fountain head of all United States law, and of all relations between the State and the Nation, the Constitution of the United States. Let us see what has actually been done under the terms of the Constitution of the United States. In its preamble, the objects of the Constitution are declared to be " to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity," etc. Section 8 of the Constitution proceeds to specify, briefly, in 18 clauses, how those objects are to be attained. In the fourth line of clause No. 1 we find that ''Congress shall have power to * * * provide for the common defense and general welfare of the United States." Clause No. 18 provides the machinery necessary to secure the ends sought in the first 17 clauses of section 8. It says that the Congress shall have power — 18. To make all laws which shall be necessary and proper for carrying into execu- tion the foregoing powers, and all other powers A^ested by this Constitution in the Government of the United States, or in any department or officer thereof. Under the authorization of the words "promote the general wel- fare," the Government of the United States has performed acts in- numerable of great and small importance, and expended uncountable millions of dollars of public money. As a few cases in point we cite the following, for not one of which did the Constitution specifically provide : The purchase of Alaska, for $7,000,000. The construction of the Union Pacific Railway. The completion of the Washington Monument. The construction of the Panama Canal. The construction, at this moment, of a railway in Alaska. The prosecution of vast irrigation schemes. The control of infectious diseases among animals. The eradication of insect pests. The eradication of wild animal pests. The eradication of wild animal diseases. The so-called "white-slave" law. The creation of 16 national parks. The creation and maintenance of six national bison herds. This list might be extended indefinitely, but it shows the wide range of national activities that very properly have been based on the constitutional provision for the promotion of the general welfare. That provision was wisely inserted to cover the thousand and one cases of national necessity sure to arise but impossible to foresee in detail in the year 1787, when the Constitution was adopted. The language of the Constitution is so plain and so explicit that it needs no judge or lawyer to expound it. The words "promote the GAME REFUGES, 39 general welfare" are too plain to be mistaken, or to admit of doubt. If we were to revise the (Constitution to-day, we could not possibly improve upon that phrase as a means to provide for things now unforeseen. In the past Congress has not split hairs in the doing of things necessary for the general welfare. Why begin with so simple, so harmless, so inexpensive and so beneficial a measure as the making of game sanctuaries in the public domain without interference with legitimate industries? Gentlemen, in conclusion I repeat that this is constructive legis- lation. Contrary to Mr. Mondell's fear, I see no reason for the expenditure of any large sums of public money on this cause; none whatever. W<^ have taken pains to say that wo were not in favor of big apiiropriations from the Federal Government in connection with these forest reserves. We do not believe they are necessary. It is quite true, as has been suggested, that the men of the Forest Service are keenly interested in this development. The reason is quite evident. The men of the Forest Service see a great oppor- tunity to do a great thing for the American people. They are anxious to produce something good and great out of the raw materials that are now going to waste. I believe sincerely that if the National Government does not enact the Hayden bill into law and does not carry out some grand, com- prehensive scheme for repau-ing the mistakes of the past that the big game of the West, excepting in existing National and State game preserves, will totally disappear, and that hunting as a sport will become a pastime of the past. I do not agree with Mr. Mondell in believing that the food-supply question is absurd or n(;gligible; quite the reverse. I know this: That whenever a frontiersman is arrested for killing game out of season and is taken to the local court, in about 7 cases out of 10 the jury sets him free on the ground that ''ho needed the meat." That is a very common expression out there: ''Not guilty: he needed the meat." The frontiersmen out West do not consider this food question in connection with big game as negligible; not by any means. You and I know, gentlemen of the committee, that in the United States there are not millions, but there are scores of millions, and hundreds of mdlions of acres of waste land to--day, in the Appalachian region, in the "VMiite Mountains, in the West, and in the South m which a vast amount of wild game might be produced if only the proper measures were taken. If we ever become so rich that 2. 000, 000 deer a year are of no consequence as a food supply, thred in the region south of the park. About one-third of the herd, perhaps half, spends the summer in the park. Now, Dr. Hornaday suggests that we must enact the legislation because the States will not take care of the game, that the sentiment is so lacking and people are so indifferent that he despairs of any success. He argues against the State of Colorado having jurisdiction over this matter when, as he informs us, the State of Colorado, by law^, has made a game preserve of the whole State. Mr. MoNDELL. May I have about five minutes to reply to one or two little n) a tters? Mr. Jacoway. Dr. Hornaday wants to be heard. Mr. MoxDELL. 1 want to refer to one or two matters while they are fresh. 46 GAME EEFUGES. ADDITIOHAL STATEMENT OF HON. FRANK W. MONDEII, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WYOMING. I tliiiik our friend, in citing the decision in the Mid West case, made his statement stronger than he intended to miake it. The Mid West case involved no c{uostion whatever except the right of the President to set aside lands and to withdraw theni from entry. There is nothing in the Mid West case that can possibly be tortured into any bearing upon the question at issue in this case. The committee s attention has been called to the fact that the Federal Government has legislated in some few cases somewhat along these lines. Well, I am glad the gentlemen did call attention to that fact because that legislation illustrates how these Federal bureaus edge in on the claim that certain legislation is restricted in its effect or local in application, establishing no precedent, and then cite the legislation is an argument for further encroachment. The Federal camel s nose gets into the tent and then he bumps the tent over. You take the case of the Wichita Bird Game Preserve. That was Indian land down there and the argument was that this land be- longed to the Indians anyway; it was Indian land; it was not public land, and we badly needed to preserve the game down there. These Indians were a lawless, outrageous set, it was said, and there was no such thing as protecting the game in such a country under a State law, that there was a peculiar situation down there, and so by common consent, but against the better judgment of many, that action was taken. I remember very well the arguments which were made in behalf of it. Then it came to the matter of the Grand Canyon game refuge. The Grand Canyon is a national monument. Some day it will be a national park. That is conceded by everybody. It just remains for some feUow^ to draw a bill, get busy and urge Congress to establish a national park there and it will be done, followed by the cession of jurisdiction. When it came to the question of protection for that country which was a national monument — and which will eventually be a national park, with complete cession of jurisdiction by the State — there was no particular objection to what was pro- posed to be done with regard to the birds and animals down in the bottom of that aw^ful chasm, far from the haunts of men. The matter of bird preserves recalls some very interesting and curious recollections upon my part, because I was a member of the Committee on the Public Lands when that thing was put over, and I am not going beyond the bounds of proper legislative speech when I use the term "put over." Mr. Jacoway. Do you not think it would be better, from your viewpoint, to say "run over"? Mr. MoNDELL. No ; we were not run over. Run over means some- thing gotten over in spite of you. That was not true in that case; we agreed to it. What I mean is that it was put through — well, I will not say on false pretenses, but it would come as near being that as aiiything could be. This was the situation : The President had, on the Gulf coast, set aside some uninhabited islands as game refuges. Nobody cared what the President did with those uninhabited islands which were, for a considerable portion of the time, under the wash GAME REFUGES. 47 of the sea, at least in time of storms. There were other islands off the coast in the northvrest and elsewhere equally inaccessihle, and where the same general condition existed. There were small areas of that kind along the coast that from time to time the President had designated as bird refuges. They had not been able to protect them by reason of lack of authority and they came to Congress saying, "We want legislation. We realize that the creation of these bird preserves was not legal, but we now want legislation so we can protect them." The matter came before the Committee on the Public Lands at the time I was a member of it. It was discussed up and down. They said, "We do not intend to do any more of. this sort of thing. We are not asking authority to create any more of these bird preserves. All v»'e want to do is to take care of what we have. These refuges are uninhabited — inhabitable — and they are far from the operation of the machinery of the States, and we want to protect them and take care of them." The Committee on the Public Lands had very decided views with regard to the matter, but finallv it was agreed to provide for taking care of those preserves which had been estab- lished. And this is the language of the bill that was drawn: That it shall be unlawful for any person to hunt, trap, capture, willfully disturb, or kill any bird of any kind whatsoever or take the eggs of such birds on any lands of the United States which have been set apart or reserved. Those of us who were a little suspicious insisted on the word ''heretofore" being used, so that it would read ''on any lands of the United States which have been heretofore set apart or reserved." They said "No; that will not do, because just now the department has under consideration the reservation of a few more of these small islands lying off the coasts, and can not now act, owing to lack of proper description, and while this bill really means ''heretofore," if the proclamations did not issue in these cases until after the bill passed it might be fatal, so far as those new preserves are concerned, if some one raised the point." It was insisted, however, that the lanojuilge of the bill did not, in fact, authorize the creation of more bird refuges, but more definite language, it was said, might make trouble, in view of ^he situation I have referred to. Officials of the departments interested in the legislation gave that as their interpretation of the bill. That bill was not passed without consideration, and it was passed under false pretenses. The chairman of the committee, Mr. Lacey, said after- wards to me, "I did not think, and told you I did not think, that it would authorize the creation of any more of these preserves, but the}^ have created them, and now tliat I look it over I think it will bear that interpretation." Officials we understood as assuring us that there was no thought on their part that the bill would allow the creation of new preserves were soon found taking another view of it. The bill never would have passed, never would liave become a law, if it Innl be(>n unchn-- stood it authorized the creation of new bird preserves. Mr. Reilly. How many have been created since then? Mr. MoNDELL. Almost immediately after the bill passed, to my amazement I was informed by a member of the Biological Survey that they held the biU gave authority to create as many bird pre- serves as the President saw fit to create. Let me teU about one in 48 GAME EEFUGES. my State. A man had applied to have a certain reservoir site re- served; he proposed to spend $200,000 or $300,000 in creating a reservoir. They took his maps — his reservoir was ahnost circular — and made one of these preserves 400 feet wide, a doughnut around his reservoir. He never built his reservoir and it is aU dry land to-day. You can not hunt m that country without bemg in danger of going across that unmarked 400 feet of Federal preserve and vio- lating a Federal law, though you may be huntmg m accordance with the State law. If they had enforced the law with regard to that particular bird preserve there would jio doubt have been several of my constituents in Federal jails right now. The only reason why no one has tested that law is that there has been little effort to en- force it. Whenever it is enforced it will be tested, just as the migra- tory bird law is bemg tested. That law was drawn using language that is capable of double construction "which have been set apart or reserved." The committee that reported it would not have reported it without the word "heretofore" in it if there had not been pledges and promises by men that they considered upright and honorable that they did not intend to interpret that as authorizing new preserves. It would apply, we were told, to bird preserves that had theretofore been established. It is a fine illustration of what is sometimes done, in persuading Congress to make a grant of pov/er on the theory that it does not go far and does not affect much, but being secured everything is claimed under it. All kinds of conflicts will arise under that law eventually, not with regard to these outlying islands, but with regard to these bird preserves that surround reclamation reservoirs where the conflicts are bound to be continuous if any regulations differing from State law are enforced. Mr. Jacoway. Following out your theory, then, you tliink the camel has gotten about half his body into the tent up to date ? Mr. MoNDELL. He has gotten his nose in under that law. Having had that experience, we are a little more careful than we were even at that time. I do not want to leave a wrong impression. I am not insisting that the Federal Government has no right to keep hunters off of its lands; I think it has the right to do that, but it has not any right to define and punish as a crime the taking of game. Mr. Reilly. Of what good is it to exercise that right to keep them off the land if they have not the right to punish for taking game improperly ? Mr. MoNDELL. It has the right to punish trespassers; to punish for trespass and for injury to its property. The courts have never held that the Federal Government had any authority or jurisdiction except to protect its property. It has the right to do that. Our opposition is not based upon the theory that we do not want the game preserved, but it is based upon the fact that we do not think this is the way to do it. Mr. Williams. Let me state for the information of the committee, since the question has been asked, that I believe there are about 70 Federal bird preserves now. So far as elk, moose, antelope, deer, and mountain sheep are con- cerned, if you put the whole State of Colorado in these preserves you would do no more than the Legislature of Colorado has already done. Dr. Hornaday says that Colorado game preservation laws aro proof there is httle or no game there. On the contrary, if there was GAME REFUGES. 49 no game there there would be no object in having a closed season protecting it. There is no doubt, however, but that the game has been depleted in Colorado. As a young man I lived in Colorado, and the mountains were covered w^ith wild game. It is not possible to bring back the game as we had it in that country 30 years ago. That woukl not be possible, or profitable . Nobody imagines that can be done or wants to have it done. While the doctor says tliere is little sentiment in the West in favor of game, our friend Barnes has called attention to the fact that the sentiment is so strong that in some cases the State has created game preserves extending over more territory than he thinks they should extend over. As I said in my statement a moment ago, better preservation for game is to be had, in the long run, in my opinion, by closed seasons covering a great territory than by having small patches and areas here and there where there is no hunting allowed at all. Mr. Barnes called attention to the fact that in my State we at one time made the whole of the Big Horn Forest Reserve a game preserve and we made it too large, he thought, because he said it deprived some sheep of feed. Well, it would not deprive sheep of feed if there were not some game there. Dr. Hornaday said there w^as no game in the Big Horn. I have not hunted game in the Big Horn, but I formerly spent some time in that beautiful mountain country and I have seen a great deal of game there and it is coming back. It was a good thing for our legislature to make tliis whole mountain area a game preserve and prohibit hunting absolutel}^ for a time until the game should have an opportunity to increase reasonably. I tliink that what Mr. Barnes has said indicates that there is a healthy sentunent in the West for game preservation, and if the gentlemen having to do with the forest res(^rves will endeavor to arrange their grazing in a way which fits in with the State provisions with regard to reserves there will be no chfficulty. It is not necessary, because a State like the State of Colorado prohibits all kinds of big- game hunting all over the State to largely reduce the amount of grazing on all the reserves of the State, though, of course, if that ])ro- hibition continues long enough the game would increase to an extent where you would have to reduce the number of grazing animals, ])ut that comes very slowly, and l)efore that tinu^ arrives the game laws would be modified. I want to thank the committee for having been very patient with me. ADDITIONAL STATEMENT OF DR. WILLIAM T. HORNADAY. Dr. Hornaday. I would like one minute in wiiich to put something into the record. There is a question of fact at issue between Mr. MondeU and myseK in regard to the presence of moose in Wyoming. I am going to read a few lines from a book entitled "Our Vanishing Wild Life," page 336: Lieut, ("ol. L. M. Brett, United States Army, superintendent of the Yellowstone Park, advises me (July 29, 1912) that the wild big game in the Yellowstone Park in the summer of 1912 is, as sllo^^^l below, based on actual counts and estimates of the park scouts, and particularly Scout McBride. The estimates of buffalo, elk, antelope, deer, sheep, and bear are based on actual counts or very close observations, and are pretty nearly correct. He estimates wild buffalo, 49 ; moose, 550; elk (in summer), 35,000; antelope, 500; mountam slieep, 210: mule deer, 400: white-tail 53985—16 4 50 GAME BEFUGES. deer, 100; grizzly bears, 50; black bears, 100; pumas, 100; gray wolf, none; coyotes, 400; and pelicans, 1,000. Mr. MoNDELL. I do not think I said there were no moose in the Yellowstone Park; I said the moose country. The country m which the moose live, grow, and breed is not by any means whoUy in the Yellowstone Park. Of course, the park is right up against it, and the moose in the summer time are all over that entire region. In the winter they are almost whoUy south of the park. (Thereupon the subcommittee adjourned.) MEMORANDUM ON THE CONSTITUTIONALITY OF THE BILL TO ESTABLISH GAME REFUGES IN NATIONAL FORESTS. (Submitted by John H. Wallace, jr. , Commissioner Alabama Department of Game and Fish.] (1) The fundamental principle underlying the bill, namely, the setting aside by the Government of parts of the public lands for the protection of game, is not new in the legislation of Congress, as witness (a) the act of Jaunuary 24, 1905 (33 Stat. 014), author- izing the President to designate areas in the Wichita Forest Reserve, Kans., "for the protection of game animals and birds and be recognized as a breeding place therefor"; (6) the act of June 29, 190G (34 Stat., 607), authorizing the President to designate areas in the Grand Canyon Forest Reserve, Ariz., "for the protection of game animals and be recognized as a breeding place therefor' '; (c) the act of June 28, 1906 (34 Stat., 536, now sec. 84 of the Penal Code), prohibiting luider penalty, "any person to hunt, trap, capture, willfully disturb, or kill any bird of any kind whatever or take the eggs of such birds on any lands of the United States which have been set apart or re- served as breeding grounds for birds by any law, proclamation, or Executive order, except under such rules and regulations as may be prescribed from time to time by the Secretary of Agriculture." (2) The United States with respect to its public lands within a State has all the rights of a private proprietor to maintain its possession and prosecute trespassers and may legislate to this end even though such legislation involve the exercise of police power. (Camfield v. United States, 167 U. S., 518.) The provision in the Constitution (sec. 3, Art. IV) providing that "Congress shall have power to dispose of, and make all needful rules and regulations respecting, the territory or other property belonging to the United States," is primarily a grant of power to the United States of control over this property, and this control is exercised by Congress to the same extent that an individual can control his property, and it is for Congress and not for the courts to determine how the public lands shall be admin- istered. (Light V. United States, 220 U. S., 523.) (3) A private proprietor of lands in any State has the right, independently of any statute on the subject, to forbid persons coming upon his lands for the purpose of hvmting, and he need give no one a reason for doing so. If the law were otherwise, he would hold his property subject to be used for hunting by others without Ms per- mission and against his interests. Certainly the United States, with respect to its lands, has the same power to forbid persons coming on these lands for the purpose of hunting. That is all that this bill proposes. The question as to who owns the game is as foreign to the question of the right of the United States to prevent hunting on its lands as to the right of the private proprietor to proliibit hunting on liis lands. It is apprehended that in most, if not all, of the States statutes are in force pres- cribing in what manner the owner of lands shall warn the public not to hunt thereon . These are popularly referred to as "posting laws." It did not require these statutes to enable the owners of the lands to prevent persons from hunting thereon, but inas- much as, unless the lands were posted against hunting persons might not know that the owners objected to their hunting, the statutes prescribe in what manner the owner shall make known his objections. The pending bill, after exercising the right of the United States to prevent hunting upon certain areas in the national forests, provides for the designation of the lands upon which hunting is not to be permitted and for the posting of these areas. (4) Former Attorney General Knox, while he was Attorney General, rendered two very exhaustive opinions upon the fundamental principle involved in this bill, and came to the conclusion in both that there was not the slightest doubt of the power of Congress to set aside portions of the public lands for the protection of game. (23 Op. Atty. Gen., 589; H. Doc. No. 321, 57th Cong., 1st sess.) LIBRARY OF CONGRESS 002 895 779 8