[Senate Executive Report 105-5]
[From the U.S. Government Publishing Office]



105th Congress                                               Exec. Rpt.
                                 SENATE

 1st Session                                                  No. 105-5
_______________________________________________________________________


 
 MIGRATORY BIRD PROTOCOL WITH CANADA AND MIGRATORY BIRD PROTOCOL WITH 
                                 MEXICO

                                _______
                                

                October 22, 1997.--Ordered to be printed

_______________________________________________________________________


          Mr. Helms, from the Committee on Foreign Relations,

                        submitted the following

                                 REPORT

             [To accompany Treaty Docs. 104-28 and 105-26]

    The Committee on Foreign Relations to which was referred 
the Protocol between the United States and Canada Amending the 
1916 Convention for the Protection of Migratory Birds in Canada 
and the United States, with a related exchange of notes, signed 
at Washington on December 14, 1995 (Treaty Doc. 104-28), and 
the Protocol between the Government of the United States of 
America and the Government of the United Mexican States 
Amending the Convention for the Protection of Migratory Birds 
and Game Mammals, signed at Mexico City on May 5, 1997 (Treaty 
Doc. 105-26), having considered the same, reports favorably 
thereon with one understanding to each treaty, one declaration 
to each treaty, and one proviso to each treaty, and recommends 
that the Senate give its advice and consent to the ratification 
thereof as set forth in this report and the accompanying 
resolutions of ratification.

                               I. Purpose

    The Protocol Amending the 1916 Convention with Canada for 
Protection of Migratory Birds and the Protocol Amending the 
Convention with Mexico for Protection of Migratory Birds and 
Game Mammals are intended primarily to resolve long-standing 
confusion and problems arising from conflicting, insufficient, 
and restrictive guidelines concerning the rights of aboriginal 
and indigenous peoples, i.e., Indians and Eskimos, to hunt 
protected migratory birds for subsistence and traditional uses 
in Alaska and Northern Canada. Certain non-aboriginal natives 
or residents of Alaska and Canada who rely on bird hunting for 
subsistence would also be permitted to hunt during the close 
season. Currently, such hunting takes place illegally outside 
any effective regulatory scheme. The Protocol would enable 
legal subsistence hunting within a regulatory conservation 
framework.
    Additionally, the Protocol modernizes existing treaty 
commitments to reflect current conservation principles and 
practices. The treaties must be amended to bring subsistence 
hunting during the close season into conformity with the U.S. 
Migratory Bird Treaty Act, which implements the four current 
bilateral migratory bird protection treaties (with Canada, 
Mexico, Russia and Japan).

                             II. Background

Existing Treaty Obligations

    The U.S.-Canada Treaty, which the proposed Protocol would 
amend, seeks to preserve migratory birds, particularly those 
valued as food sources or predators of agricultural pests, 
during their nesting season and migration. The agreement lists 
the protected migratory birds species (Article I). A close 
season for migratory game birds is established from March 10 to 
September 1, except that in certain coastal regions the season 
is from February 1 to August 15 (Article II(1)). The hunting 
season is limited to a period not exceeding three and a half 
months (Article II(1)). The close season on migratory 
insectivorous birds and on migratory non-game birds is 
throughout the year (Article II(2), and (3)). The taking of 
nests or eggs of the protected migratory birds is prohibited 
except for scientific or propagating purposes established by 
laws and regulations (Article V). Certain specified migratory 
birds are still or were initially protected by a continuous 
close season for a period of years or other means of 
conservation (Articles III and IV). The treaty provides for the 
regulation of commerce in birds and eggs (Article VI). The 
agreement also authorizes the issuance of permits to kill 
injurious birds, but only during the time that the threat of 
injury to agricultural or other interests exists (Article VII). 
Furthermore, the birds killed under such permits cannot be 
taken for commercial purposes (Article VII). There are 
exceptions for subsistence or traditional uses by Indians and/
or Eskimos. Indians can take scoters (game birds) at any time 
for food but not for sale (Article II(1)). Eskimos and Indians 
can take at any season certain species of non-game birds and 
their eggs for food and their skins for clothing, but not for 
sale (Article II(3)).
    The U.S.-Mexico Treaty states as its purpose the 
preservation of migratory birds which live temporarily in the 
United States and Mexico, by methods permitting the rational 
use of such birds for sport, food, commerce and industry 
(Article I). The treaty parties agree to implement domestic 
laws and regulations establishing different methods of 
preservation (Article II). Close seasons are established to 
prohibit the taking, transportation, or sale, alive or dead, of 
migratory birds, their nests, eggs, products or parts, except 
when proceeding, with appropriate authorization, from private 
game farms or when used for scientific purposes, propagation or 
museums (Article II(A)). However, unlike the U.S.-Canada 
Treaty, the exact dates of the close seasons are not specified, 
except for wild ducks, for which the close season is from March 
10 to September 1 (Article II(D)). The exception regarding game 
farms and use for museums is not found in the U.S.-Canada 
Treaty. The hunting season is limited to a maximum period of 
four months per year, longer than under the U.S.-Canada Treaty, 
under permits issued by the appropriate authorities (Article 
II(C)). Apparently, since there is no express prohibition 
outside the close season, nests and eggs can be taken during 
the open hunting season, unlike under the U.S.-Canada Treaty. 
Bird refuges are to be established (Article II(B)). The killing 
of migratory insectivorous birds is prohibited except when such 
birds become injurious to agriculture and constitute plagues, 
or when they come from reserves or game farms (Article II(E)). 
Unlike the U.S.-Canada Treaty, the U.S.-Mexican Treaty 
explicitly prohibits hunting from aircraft (Article II(F)). 
Transportation over the U.S.-Mexican border of migratory birds, 
dead or alive, or of their parts or products, is not permitted 
without the appropriate permit, and illegal shipments are to be 
treated as contraband. (Article III). The migratory game and 
non-game birds protected by the agreement are listed (Article 
IV). The 1972 amendment to the agreement lists additional 
protected species. Beyond the protection of migratory birds, 
the restrictions on transportation of migratory birds under 
Article III also apply to the transportation of game mammals 
living in the United States and/or Mexico.
    Although the U.S.-Mexico Treaty differs from the U.S.-
Canada Treaty in several respects, the most important one with 
regard to aboriginal and subsistence hunting rights is the 
absence of any exception for such rights. Although the close 
season provisions are generally more flexible and the hunting 
season may be longer in the U.S.-Mexico Treaty, the absence of 
any aboriginal and subsistence hunting exceptions appears to 
make the dates of the close season for ducks absolute.

Procedural History

    The early procedural history of the Canadian treaty yielded 
one of the most important judicial decisions regarding U.S. 
treaty principles. In the early decades of this century, the 
first congressional attempts were made to deal with the drastic 
reduction in the avian population resulting from aggressive 
hunting to meet market demand for bird products. Before that 
time, state and local governments exercised authority over 
wildlife protection. The inability of these authorities to 
handle and prevent the decimation of wildlife led to attempts 
at federal intervention. The Lacey Act of 1900 had proven 
ineffective in stopping the illegal interstate shipment of 
birds. The Weeks-McLean Act of 1913 was intended to stop 
commercial hunting and the illegal interstate shipment of 
migratory birds.
    The Act was soon challenged as an unconstitutional 
violation of states' rights. Two federal district courts found 
the Act unconstitutional and not permissible as a regulation of 
interstate commerce or as a protection of federal property. 
However, prior to consideration of these decisions by the 
Supreme Court, the State Department concluded the Convention 
for the Protection of Migratory Birds with Great Britain (which 
then had jurisdiction over Canada). Under Article VIII of the 
Convention, the parties agreed to take the necessary measures 
for domestic implementation of the Convention. The Migratory 
Bird Treaty Act (MBTA) was signed into law on July 3, 1918, and 
the Supreme Court subsequently dismissed the appeal regarding 
the unconstitutionality of the Weeks-McLean Act. However, the 
MBTA itself was soon challenged as unconstitutional in a case 
culminating in the landmark Supreme Court decision, Missouri v. 
Holland (252 U.S. 416 (1920)). The Supreme Court upheld the 
MBTA on the basis of the treaty-making power of the federal 
government under article II of the U.S. Constitution and of the 
supremacy clause in article VI, making a clear statement that 
treaties are part of the supreme law of the land.
    Addressing the question of subsistence use of migratory 
birds in Alaska ``has been one of the most troublesome issues 
surrounding the implementation of this country's migratory bird 
treaties.'' \1\ The problem arose from the inconsistency among 
subsistence exemptions in the four treaties implemented by the 
Migratory Birds Treaty Act. The earlier treaties did not permit 
the administrative flexibility necessary to manage subsistence 
uses realistically. On January 30, 1979, the United States and 
Canada concluded a protocol amending the U.S.-Canada Treaty in 
an effort to address this issue. The 1979 protocol (which is 
still pending before the Committee) would have permitted the 
parties to authorize the taking of migratory birds and the 
collection of their eggs by the indigenous inhabitants of the 
State of Alaska and the Indians and Inuit of Canada for their 
own nutritional and other essential needs during any period of 
the year in accordance with seasons established by Parties so 
as to provide for the preservation and maintenance of stocks of 
migratory birds. This new exemption would not have affected the 
continued validity of the existing subsistence use exemptions 
under the Treaty.
---------------------------------------------------------------------------
    \1\ S. Rep. No. 1175, 95th Cong., 2d Sess. 6 (1978). This is part 
of the legislative history of the Fish and Wildlife Improvement Act of 
1978, Pub. L. No. 95-616, 92 Stat. 3110. Although paragraphs 3(h)(2) 
and 3(h)(3) of the act affect the implementation of the four migratory 
bird treaties, apparently they technically do not amend the MBTA.
---------------------------------------------------------------------------
    However, many conservation groups thought that the language 
of the 1979 protocol was too broad and would result in 
excessive takings of migratory birds. These groups lobbied 
strongly against the protocol and broader close season 
exceptions. Consequently, the 1979 protocol was never ratified, 
and was never the subject of a hearing or considered by the 
Foreign Relations Committee.
    In the meantime, the U.S. Fish and Wildlife Service had 
been following a policy of non-enforcement of the MBTA and of 
its regulations. The MBTA did not explicitly provide for 
subsistence use exceptions prior to the Fish and Wildlife 
Improvement Act of 1978. The subsistence use regulation, 50 
C.F.R. Sec.  20.132, promulgated in 1973 and still current, 
provided for subsistence hunting according to the exception in 
Article II(3) of the U.S.-Canada Treaty. This exception was 
only for Eskimos and Indians in Alaska with regard to certain 
species of birds. The regulation also permitted the subsistence 
taking of snowy owls and cormorants by any person in Alaska.\2\ 
Despite the relatively limited subsistence use permitted by 
law, for the most part, enforcement against illegal subsistence 
taking apparently was not feasible in many areas of Alaska and 
was not actively pursued by the U.S. Fish and Wildlife Service. 
The first real enforcement attempts were frustrated and the 
U.S. Fish and Wildlife Service retreated to an informal non-
enforcement policy. After an incident in 1975 in which a postal 
official caught an Eskimo attempting to mail freshly killed 
ducks, the U.S. Fish and Wildlife Service announced an official 
policy of non-enforcement, and the Alaska Department of Fish 
and Game followed suit.
---------------------------------------------------------------------------
    \2\ Snowy owls and cormorants were not protected under the U.S.-
Canada Treaty. However, the U.S.-Mexico, U.S.-Japan, and U.S.-U.S.S.R. 
Treaties currently protect them. The more flexible language of these 
treaties permitted the promulgation of regulations which would allow 
subsistence taking of these species, therefore, this particular 
subsistence use exception was added to the regulations at 38 Fed. Reg. 
17841 (1973).
---------------------------------------------------------------------------
    In an attempt to reduce illegal takings, the U.S. Fish and 
Wildlife Service negotiated and concluded agreements with 
representatives of the Eskimo community, the 1984 Hooper Bay 
Agreement and the 1985 Yukon-Kuskokwim Delta Goose Management 
Plan. These agreements formally recognized and authorized 
subsistence hunting during the close season in contravention of 
the MBTA and the more restrictive migratory bird protection 
treaties. The Alaska Fish and Wildlife Federation and the 
Alaska Fish and Wildlife Conservation Fund sued the U.S. Fish 
and Wildlife Service and the Alaska Department of Fish and Game 
seeking declaratory and injunctive relief. The Conservation 
Fund sought an injunction against the U.S. Fish and Wildlife 
Service's acquiescence in close season subsistence takings 
which the Conservation Fund alleged violated the MBTA, the 
Administrative Procedure Act (APA) and the National 
Environmental Policy Act (NEPA). A couple of organizations 
representing Alaska Natives which intervened in the case cross-
claimed that the Alaska Game Act of 1925 (AGL) superseded the 
MBTA and allowed Alaskan Natives to take migratory birds in the 
close season for subsistence use.
    The district court ruled that the U.S. Fish and Wildlife 
Service could not restrict the subsistence use takings by 
Alaskan Natives during the close season and that the AGL 
repealed the application of the MBTA to Alaska. However, the 
court also found that the MBTA was incorporated into the AGL, 
except for the restriction on subsistence hunting. Since the 
AGL permitted subsistence use takings, the district court found 
that the two challenged agreements had no legal effect, and 
thus the claimed violations of the APA and NEPA were moot. The 
court declined to decide whether the Secretary of Interior had 
authority under the Fish and Wildlife Improvement Act to 
restrict subsistence use takings because the U.S. Fish and 
Wildlife Service had not yet issued regulations pursuant to 
that Act. The Conservation Fund appealed.
    In Alaska Fish and Wildlife Federation and Outdoor Council, 
Inc. v. Dunkle (829 F.2d 933, 942-945 (9th Cir. 1987)), the 
Court of Appeals for the Ninth Circuit held that the AGL did 
not supersede the MBTA with regard to Alaska. The subsistence 
takings provision of the AGL prohibited the adoption of 
regulations restricting subsistence takings of animals and non-
migratory birds in Alaska. However, the MBTA still governed the 
takings of migratory birds in Alaska, including any subsistence 
use takings. The Court of Appeals ruled that the Secretary of 
Interior is authorized to issue regulations permitting 
subsistence taking of migratory birds in Alaska under the MBTA, 
but only to the extent that the regulations are in accord with 
all the treaties under the Act. This meant that any subsistence 
taking had to be in accordance with the most restrictive 
subsistence provision among the four treaties, i.e., the U.S.-
Canada Treaty. Subsistence use takings beyond the scope of 
permissible takings under the U.S.-Canada Treaty were in 
violation of the MBTA even if such takings would be within the 
scope of permissible takings under the more liberal treaties. 
Therefore, general close season subsistence takings by Alaskan 
Natives were not permitted by the MBTA. The Court of Appeals 
rejected arguments that the Fish and Wildlife Improvement Act 
required regulations to be in accord only with the U.S.-
U.S.S.R. Treaty (which provided for more liberal subsistence 
taking), noting that the legislative history made clear that 
regulations permitting closed season subsistence takings may 
not be promulgated if they are contrary to any of the four 
treaties. The court also noted that the legislative history 
showed that Congress believed that the three earlier treaties 
had to be amended to be consistent with the U.S.-U.S.S.R. 
Treaty before regulations permitting subsistence hunting could 
be adopted. To the extent that the two challenged agreements, 
the 1984 Hooper Bay Agreement and the 1985 Goose Management 
Plan, conflicted with the provisions of the four treaties, they 
were invalid, and any future similar agreement would likewise 
be invalid.
    The opinion of the Court of Appeals made it clear that the 
U.S.-Canada Treaty and the U.S.-Mexico Treaty would have to be 
amended in order to permit closed season subsistence takings. 
Only the U.S.-U.S.S.R. Treaty explicitly permitted subsistence 
hunting by Alaskan Natives. The proposed Protocols would 
correct this enforcement problem.

Domestic Implementation.

    The U.S.-Canada Protocol would resolve some of the problems 
regarding the subsistence takings by indigenous inhabitants of 
Alaska during the close season. The U.S.-Mexico Protocol is a 
component necessary to enable the regulatory implementation of 
the subsistence use policy under the U.S.-Canada Protocol. The 
U.S.-U.S.S.R. Treaty does not appear to pose any problem. 
However, although the U.S.-Japan Treaty does not pose an 
obstacle to most aspects of the subsistence use provisions 
contained in the U.S.-Canada Protocol, it remains inconsistent 
with and more restrictive than that policy in some respects. 
Therefore, regulations issued pursuant to the MBTA must take 
into account those restrictive aspects of the U.S.-Japan 
Treaty.

                              III. Summary

                         a. u.s-canada protocol

    According to the Letter of Submittal from Secretary of 
State Warren Christopher to President Clinton, accompanying the 
Protocol, ``[t]he goals of the Protocol are to bring the 
Convention into conformity with actual practice and Canadian 
law, and to permit the effective regulation for conservation 
purposes of the traditional hunt. Timely ratification is of the 
essence to secure U.S.-Canada conservation efforts.''
    The Preamble.  The preamble expresses a commitment to the 
conservation of migratory birds for a broad range of values, 
``nutritional, social, cultural, spiritual, ecological, 
economic, and aesthetic,'' through international cooperative 
efforts within a ``comprehensive international framework.'' It 
goes on to express the primary concern of the Protocol, to 
accommodate the aboriginal and treaty rights of aboriginal 
peoples in Canada and to provide for the customary and 
traditional subsistence taking of migratory birds and eggs by 
indigenous inhabitants of Alaska. The Protocol is not intended 
to increase the taking of birds and eggs, since it is supposed 
to be a formal recognition and authorization of the de facto 
policy of non-enforcement of the current MBTA, whose regulation 
currently is limited to the most restrictive aboriginal and 
subsistence provision contained in the four treaties.
    Article I--Protected Birds.  Article I of the Protocol 
repeals and replaces the current Article I of the Treaty by 
modernizing the names and classification of the birds listed as 
protected by the Treaty. No species were added to or removed 
from the list. The Canadian provinces regulate the management 
of bird populations not included in the original Treaty, and 
the amendment of the list of protected species would have 
entailed lengthy, complicated Canadian internal negotiations. 
The Protocol does not follow the U.S.-Japan and U.S.-U.S.S.R. 
Treaties in creating a general definition for ``migratory 
birds'' and placing the list of protected birds in an annex or 
appendix.
    Article II(1)(2)(3)--Close Seasons.  Article II of the 
Protocol deletes and replaces the Article II of the Treaty. A 
new introductory section of Article II enumerates the 
conservation principles to be followed in managing migratory 
bird populations. Article II(1) of the Protocol does not 
incorporate the flexibility in establishing close seasons found 
in the U.S.-Japan and U.S.-U.S.S.R. Treaties, choosing to 
retain the fixed close season for migratory game birds. 
However, only the period from March 10 to September 1 remains a 
close season; the close season from February 1 to August 15 for 
certain regions is eliminated. The year-round close season for 
migratory non-game and insectivorous birds is retained. The 
hunting season remains limited to a maximum three and one-half 
months per year, which the parties agreed would be interpreted 
to mean 107 days.
    Under Article II(2), migratory birds, their nests or eggs 
shall not be sold or offered for sale. Article II(3) permits 
the taking of migratory birds at any time of the year for 
scientific, educational, propagative, or other specific 
purposes consistent with the conservation principles of the 
Treaty. This provision is similar to exceptions in the U.S.-
Japan and U.S.-U.S.S.R. Treaties. Notably, the current U.S.-
Canada Treaty exception for scientific and propagative 
activities applies only to the prohibition against taking of 
nests and eggs. The Protocol would therefore broaden the 
exception to permit the taking of migratory birds during the 
close season for scientific and propagative purposes.
    Article II(4)(a), II(5)--Canadian Subsistence Exceptions.  
The major change in the exception to close season prohibitions 
is the expanded provisions for aboriginal and subsistence 
takings (Article II(4)(a)). In Canada, subject to existing 
aboriginal treaty rights and to regulatory regimes, self-
government agreements, co-management agreements and land claims 
agreements, migratory birds and their eggs may be harvested at 
any time by aboriginal peoples having aboriginal or treaty 
rights. The down and inedible by-products may be sold, but 
commerce in the birds and eggs may only occur within or between 
aboriginal communities. Migratory game and non-game birds and 
their eggs may be taken throughout the year for food by 
qualified non-aboriginal residents in areas of northern Canada 
where the relevant agreements with aboriginal peoples of Canada 
recognize that the aboriginal peoples may permit such 
activities. The dates of the fall season for such takings by 
qualified residents may be varied by law or regulation. The 
birds or eggs taken by qualified residents shall not be sold or 
offered for sale. Additionally, under Article II(5), non-
aboriginal residents of Newfoundland and Labrador are permitted 
to take murres from September 1 to March 10, for a period not 
greater than three and one-half months, but the murres shall 
not be sold or offered for sale. No exemption for this 
traditional hunt was included in the U.S.-Canada Treaty 
originally, because in 1916 Newfoundland and Labrador were not 
part of Canada (Article II(5)).
    No private right of action accrues to indigenous 
inhabitants or to aboriginal peoples of Canada on the basis of 
the Protocol.
    Article II(4)(b)--Alaskan Subsistence Exceptions.  For the 
United States, migratory birds and their eggs may be harvested 
by the indigenous inhabitants of Alaska (Article II(4)(b)). 
Seasons and other regulations for such takings shall be 
consistent with the ``customary and traditional uses by such 
indigenous inhabitants for their own nutritional and other 
essential needs.'' Indigenous inhabitants are to be given an 
``effective and meaningful role'' in the conservation of 
migratory birds, including a role in the development and 
implementation of regulations.
    According to the Letter of Submittal from the State 
Department, the term ``indigenous inhabitants'' ``refers 
primarily to Alaska Natives who are permanent residents of 
villages within designated areas of Alaska where subsistence 
hunting of migratory birds is customary and traditional. The 
term also includes non-Native permanent residents of these 
villages who have legitimate subsistence hunting needs.'' 
(emphasis added). The basis for this definition of ``indigenous 
inhabitants'' can be traced back to the discussion of the term 
as used in the U.S.-U.S.S.R. Treaty. During Committee hearings 
questions were raised about the definition of the term 
``indigenous inhabitants'' in Article II, and the executive 
report included an excerpt from the U.S. official delegation 
report dated March 16, 1977. According to these records, the 
term ``indigenous inhabitants'' was chosen deliberately to 
permit the inclusion of ``non-Native Alaskans with legitimate 
subsistence hunting needs.'' The provision for subsistence 
takings was meant to be similar to a provision in the 
Endangered Species Act of 1973 which permitted any non-Native 
permanent residents of Alaskan Native villages to participate 
in subsistence hunts. Thus the subsistence exemption would be 
racially non-discriminatory.
    The legislative history of the Fish and Wildlife 
Improvement Act of 1978 reflects a congressional concurrence in 
the use and discussion of the terms ``indigenous inhabitants'' 
and ``nutritional and other essential needs'' by the official 
U.S. delegation report on the U.S.-U.S.S.R. Treaty. It 
emphasizes that the term ``indigenous inhabitants'' includes 
both Native and non-Native people with legitimate subsistence 
hunting needs. The executive document transmitting the 1979 
U.S.-Canada Protocol to the Senate emphasizes that the Protocol 
would permit subsistence hunting by residents of Alaska in a 
racially non-discriminatory manner, meaning that both Native 
and non-Native residents of Alaska with legitimate subsistence 
hunting needs were included.
    The United States is authorized to establish subsistence 
taking of migratory birds, their eggs and down in any season. 
Commercial use would not be permitted aside from limited sales 
of inedible by-products of birds taken for food which are then 
incorporated into authentic, traditional handicraft items. Such 
use would be strictly controlled by the competent authorities. 
This interpretation of takings for ``nutritional and other 
essential needs'' can also be traced back to the U.S.-U.S.S.R. 
Treaty.
    Article III--Treaty Review by the Parties.  Article III of 
the Protocol deletes and replaces Article III of the Treaty, an 
obsolete provision which established a continuous close season 
for ten years after the effective date of the Treaty for 
certain migratory game birds. The new Article III provides that 
the Treaty parties will meet regularly to review progress in 
implementing the Treaty, including matters such as the status 
of bird populations and habitats and the effectiveness of 
management and regulatory systems. The parties agree to 
cooperate to solve identified problems in accordance with the 
conservation principles expressed in Article II and, if 
necessary, to make special arrangements for the protection of 
species of particular concern.
    Article IV--Bird Habitat Conservation.  Article IV of the 
Protocol deletes and replaces Article IV of the Treaty, an 
obsolete provision concerning special protections for wood 
ducks and eider ducks. The new Article IV provides for the 
protection and enhancement of bird habitats, requiring the 
Treaty parties to seek means to prevent damage to the habitats, 
to try to control the importation of animals and plants which 
are hazardous to protected birds, to try to control the 
introduction of animals and plants which could disturb the 
ecological balance of unique island ecosystems, and to pursue 
cooperative arrangements to conserve essential habitats. 
Although this article does not require the Treaty parties to 
take new steps beyond their current efforts, it fills a gap in 
the current Treaty which is silent on the subject of 
preservation of bird habitats. Provisions requiring efforts to 
protect bird habitats are included in the U.S.-Japan and U.S.-
U.S.S.R. Treaties.
    Article V--Educational and Scientific Exceptions.  Article 
V of the Protocol deletes and replaces Article V of the Treaty, 
which prohibits the taking of nests and eggs with limited 
exceptions, by updating it. The new Article V expands the 
exceptions, making them consistent with similar provisions in 
the U.S.-Japan and U.S.-U.S.S.R. Treaties and with similar 
exceptions for the taking of migratory birds in Article II(3). 
Exceptions permitting takings for educational purposes, for 
other specific purposes consistent with the conservation 
principles of the Treaty, or for subsistence uses permitted 
under Article II(4), are added to existing exceptions to the 
prohibition on the taking of nests and eggs.
    Article VI--Entry into Force.  Article VI provides that the 
Protocol is subject to ratification. It shall enter into force 
upon the exchange of instruments of ratification and remain in 
force for the duration of the Treaty and be considered an 
integral part of the Treaty.
    Exchange of Notes--Emphasis of Conservation Principles.  
The United States and Canada engaged in a further exchange of 
notes to clarify and affirm the understanding that activities 
permitted under Article II, including the taking of migratory 
birds and eggs by aboriginal peoples of Canada and indigenous 
inhabitants of Alaska, shall be conducted in accord with the 
conservation principles expressed elsewhere in Article II. This 
clarification affirmed that the existing aboriginal and treaty 
rights of the aboriginal peoples of Canada would not override 
the conservation principles and would not be recognized in a 
manner inconsistent with those principles. The exchange of 
notes ensured that there would be no interpretation of the 
Treaty to the contrary.

                        B. u.s.-mexico protocol

    The U.S.-Mexico Protocol is not as comprehensive as the 
U.S.-Canada Protocol. Like the U.S.-Canada Protocol, the 
Protocol Amending Convention with Mexico for Protection of 
Migratory Birds & Game Mammals (Treaty Doc. 105-26) is intended 
primarily to resolve long-standing confusion and problems 
arising from conflicting, insufficient, and restrictive 
guidelines concerning the rights of aboriginal/indigenous 
peoples, i.e., Indians and Eskimos, to hunt protected migratory 
birds for subsistence and traditional uses in Alaska.
    The Preamble.  The preamble declares a commitment to 
conservation of migratory birds for their ``nutritional, 
social, cultural, spiritual, ecological, economic, and 
aesthetic values'' through a comprehensive, cooperative, 
international framework, adopting the broader expression of 
purpose similarly expressed in the U.S.-Japan and U.S.-U.S.S.R. 
Treaties.
    Article I--Subsistence Taking of wild ducks and eggs.  
Article I of the Protocol simply deletes and replaces Article 
II(D) of the Treaty with an updated text permitting subsistence 
taking of wild ducks and their eggs by indigenous inhabitants 
of Alaska, consistent with ``customary and traditional uses'' 
by these inhabitants ``for their own nutritional and other 
essential needs.''
    Article II--Entry into Force.  Article II of the Protocol 
provides for the ratification of the Protocol, its entry into 
force upon the exchange of instruments of ratification, its 
effectiveness for the duration of the Treaty, and its 
consideration as an integral part of the Treaty.

                  IV. Entry into Force and Termination

                          a. entry into force

    Both Protocols enter into force upon the exchange of 
instruments of ratification.

                             b. termination

    Both Protocols remain in force for the duration of the 
underlying Conventions.

                          V. Committee Action

    The Committee on Foreign Relations held a public hearing on 
the proposed protocols on September 25, 1997. The hearing was 
chaired by Senator Chuck Hagel. The Committee considered the 
proposed protocols on October 8, 1997, and ordered the proposed 
protocols favorably reported each with one understanding, one 
declaration and one proviso by voice vote, with the 
recommendation that the Senate give its advice and consent to 
the ratification of the proposed treaty.

                         VI. Committee Comments

    The Committee endorses the sound conservation and 
responsible stewardship principles contained in the Mexico and 
Canada Protocols dealing with the Protection of Migratory 
Birds. The Protocols make legal the practice of traditional 
hunting in Alaska and Canada during the closed seasons. The 
reality is that when the hunting season opens in Alaska the 
birds are gone from areas in the far north where many 
indigenous people hunt and fish. These Protocols attempt to 
provide an opportunity for traditional hunts to occur in the 
spring and summer under a controlled management scheme in which 
natives of the villages where the hunts occur will have a voice 
in the management and enforcement of the hunt.
    The Committee expects that these protocols will do much to 
improve the management of traditional hunts. As the Fish and 
Wildlife Service has maintained a practice of non-enforcement 
of the Treaty requirements that would otherwise prohibit these 
hunts, these protocols will put in place a rational 
conservation program that allows the traditional spring hunt to 
continue while providing better management and data on the 
numbers and kinds of birds taken in the hunts in both Alaska 
and Canada. Under the new regime the estimated 10,000 to 13,000 
subsistence hunters in Alaska, and the numerous hunters in 
Canada, will be required to account for their harvests and be 
accounted for in the continental management scheme. The 
Committee believes it is important to end the anomaly of a 
policy of non-enforcement of U.S. law, as currently required by 
the Migratory Bird Treaty Act.
    During the hearing to consider the Protocols the Committee 
received testimony from the President of the Alaskan 
Association Village Presidents. He testified to the essential 
link between the native customary and traditional harvest of 
migratory birds and the culture of native Alaskans. The 
Committee supports this link and believes that a legal 
recognition of the legitimate subsistence and cultural needs of 
native Alaskans is long overdue.
    The Committee's recommended resolutions of ratification 
each contain one understanding to clarify the interpretation of 
Article 11(4)(b) of the Canada Protocol and Article I of the 
Mexico Protocol regarding the definition of indigenous 
inhabitants. The resolution contains the definition used by the 
Administration in its transmittal documents of the Protocols to 
the Senate. Specifically, the resolution makes clear that the 
shared understanding between the Senate and the Executive is 
that when implementing treaty commitments, permanent residents 
of a village within a subsistence harvest area, regardless of 
race, will be treated as indigenous inhabitants. Further, 
immediate family members of indigenous inhabitants may be 
invited to participate in the customary spring and summer 
subsistence harvest, and may also be treated as indigenous 
inhabitants where it is appropriate to recognize a need to 
assist indigenous inhabitants in meeting nutritional and other 
essential needs, or for the teaching of cultural knowledge to 
or by their family members. These persons, however, must have 
the permission of the village council and the appropriate 
permits. The Committee expects that this exception will be used 
judiciously and sparingly with due regard to the conservation 
principles set out in the Conventions, as amended.

                    VII. Resolution of Ratification

U.S.-Canada Protocol

    Resolved, (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Protocol Between the United States and 
Canada Amending the 1916 Convention for the Protection of 
Migratory Birds in Canada and the United States, with Related 
Exchange of Notes, signed at Washington on December 14, 1995 
(Treaty Doc. 104-28), subject to the understanding of 
subsection (a), the declaration of subsection (b), and the 
proviso of subsection (c).
    (a) UNDERSTANDING.--The Senate's advice and consent is 
subject to the following understanding, which shall be included 
in the instrument of ratification, and shall be binding on the 
President:
          (1) INDIGENOUS INHABITANTS.--The United States 
        understands that the term ``indigenous inhabitants'' as 
        used in Article II(4)(b) means a permanent resident of 
        a village within a subsistence harvest area, regardless 
        of race. In its implementation of Article II(4)(b), the 
        United States also understands that where it is 
        appropriate to recognize a need to assist indigenous 
        inhabitants in meeting nutritional and other essential 
        needs, or for the teaching of cultural knowledge to or 
        by their family members, there may be cases where, with 
        the permission of the village council and the 
        appropriate permits, immediate family members of 
        indigenous inhabitants may be invited to participate in 
        the customary spring and summer subsistence harvest.
    (b) DECLARATION.--The Senate's advice and consent is 
subject to the following declaration, which shall be binding on 
the President:
          (1) TREATY INTERPRETATION.--The Senate affirms the 
        applicability to all treaties of the constitutionally 
        based principles of treaty interpretation set forth in 
        Condition (1) of the resolution of ratification of the 
        INF Treaty, approved by the Senate on May 27, 1988, and 
        Condition (8) of the resolution of ratification of the 
        Document Agreed Among the States Parties to the Treaty 
        on Conventional Armed Forces in Europe, approved by the 
        Senate on May 14, 1997.
    (c) PROVISO.--The resolution of ratification is subject to 
the following proviso, which shall be binding on the President:
          (1) SUPREMACY OF THE CONSTITUTION.--Nothing in the 
        Treaty requires or authorizes legislation or other 
        action by the United States of America that is 
        prohibited by the Constitution of the United States as 
        interpreted by the United States.

U.S.-Mexico Protocol

    Resolved, (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Protocol between the Government of the 
United States of America and the Government of the United 
Mexican States Amending the Convention for the Protection of 
Migratory Birds and Game Mammals, signed at Mexico City on May 
5, 1997 (Treaty Doc. 105-26), subject to the understanding of 
subsection (a), the declaration of subsection (b), and the 
proviso of subsection (c).
    (a) UNDERSTANDING.--The Senate's advice and consent is 
subject to the following understanding, which shall be included 
in the instrument of ratification, and shall be binding on the 
President:
          (1) INDIGENOUS INHABITANTS.--The United States 
        understands that the term ``indigenous inhabitants'' as 
        used in Article I means a permanent resident of a 
        village within a subsistence harvest area, regardless 
        of race. In its implementation of Article I, the United 
        States also understands that where it is appropriate to 
        recognize a need to assist indigenous inhabitants in 
        meeting nutritional and other essential needs, or for 
        the teaching of cultural knowledge to or by their 
        family members, there may be cases where, with the 
        permission of the village council and the appropriate 
        permits, immediate family members of indigenous 
        inhabitants may be invited to participate in the 
        customary spring and summer subsistence harvest.
    (b) DECLARATION.--The Senate's advice and consent is 
subject to the following declaration, which shall be binding on 
the President:
          (1) TREATY INTERPRETATION.--The Senate affirms the 
        applicability to all treaties of the constitutionally 
        based principles of treaty interpretation set forth in 
        Condition (1) of the resolution of ratification of the 
        INF Treaty, approved by the Senate on May 27, 1988, and 
        Condition (8) of the resolution of ratification of the 
        Document Agreed Among the States Parties to the Treaty 
        on Conventional Armed Forces in Europe, approved by the 
        Senate on May 14, 1997.
    (c) PROVISO.--The resolution of ratification is subject to 
the following proviso, which shall be binding on the President:
          (1) SUPREMACY OF THE CONSTITUTION.--Nothing in the 
        Treaty requires or authorizes legislation or other 
        action by the United States of America that is 
        prohibited by the Constitution of the United States as 
        interpreted by the United States.



                            A P P E N D I X


 EX. F, 96-1: MARITIME BOUNDARIES TREATY WITH MEXICO; TREATY DOC. 104-
     28: PROTOCOL AMENDING THE 1916 CONVENTION WITH CANADA FOR THE 
    PROTECTION OF MIGRATORY BIRDS; AND TREATY DOC. 105-26: PROTOCOL 
  AMENDING THE CONVENTION WITH MEXICO FOR THE PROTECTION OF MIGRATORY 
                         BIRDS AND GAME MAMMALS



                            C O N T E N T S

                               __________

                           September 25, 1997

                                                                   Page

Clark, Jamie, Director of Fish and Wildlife Service, Department 
  of Interior....................................................    34
    Prepared statement...........................................    36
Holmes, Roger, Director, Division of Fish and Wildlife, Minnesota 
  Department of National Resources...............................    41
    Prepared statement...........................................    43
Murkowski, Hon. Frank, U.S. Senator from the State of Alaska.....    20
    Prepared statement...........................................    22
Naneng, Myron Sr., President, Association of Village Presidents, 
  Vice Chair, Native Migratory Birds Working Group, Anchorage, 
  Alaska.........................................................    39
Ulmer, Hon. Fran, Lieutenant Governor, State of Alaska...........    18
West, Mary Beth, Deputy Assistant Secretary of State for Oceans, 
  Science and Technology, Bureau of Oceans and International 
  Environmental and Scientific Affairs...........................    24
    Prepared statement...........................................    26


 EX. F, 96-1: MARITIME BOUNDARIES TREATY WITH MEXICO; TREATY DOC. 104-
     28: PROTOCOL AMENDING THE 1916 CONVENTION WITH CANADA FOR THE 
    PROTECTION OF MIGRATORY BIRDS; AND TREATY DOC. 105-26: PROTOCOL 
  AMENDING THE CONVENTION WITH MEXICO FOR THE PROTECTION OF MIGRATORY 
                         BIRDS AND GAME MAMMALS

                              ----------                              


                      THURSDAY, SEPTEMBER 25, 1997

                                       U.S. Senate,
                            Committee on Foreign Relations,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2:03 p.m. In room 
SD-419, Dirksen Senate Office Building, Hon. Chuck Hagel 
presiding.
    Present: Senator Hagel.
    Senator Hagel. Good afternoon. I would like to welcome all 
of you, especially our distinguished witnesses today, for our 
hearing on three important treaties.
    I am pleased to recognize my friend, our distinguished 
colleague, the Senator from Alaska, chairman of the Senate 
Energy Committee, Senator Murkowski, who is here to lend his 
support to our consideration of two treaties relating to 
migratory birds.
    I note, as well, that he is accompanied by another 
distinguished guest, Alaska's Lieutenant Governor, Lieutenant 
Governor Ulmer. We welcome you and appreciate very much your 
participation.
    We later will be hearing from Deputy Assistant Secretary of 
State Mary Beth West. Ms. West will provide the 
administration's views on the U.S.-Mexico Boundary Treaty. Ms. 
West will be followed by two panels testifying on the Migratory 
Birds Protocols. First will be Director Clark of the Fish and 
Wildlife Service.
    Our final panel will include Mr. Naneng, President of the 
Native Migratory Birds Working Group of the Association of 
Village Presidents, and Mr. Holmes, Director of the Minnesota 
Fish and Wildlife Division.
    Welcome to all of you.
    The U.S.-Mexico Boundary Treaty was first submitted to the 
Senate in 1979. Initially, there was some controversy over the 
methodology used to delineate the maritime boundary between the 
U.S. and Mexico in the Gulf of Mexico. There also was little 
urgency to ratify the treaty because of the technical 
difficulties of deep water drilling in the Gulf.
    Now, however, those technological challenges are being 
overcome.
    I also understand that the delineation methodology, which 
was originally controversial, has now been accepted by all 
sides.
    I am pleased that we are able to take quick action on the 
U.S.-Canada and U.S.-Mexico Protocols amending two 1916 
treaties on the protection of migratory birds. These two new 
protocols are an excellent example of how sportsmen, 
conservationists, and native groups can work together to 
address serious issues.
    In this case, these protocols will enable remote native 
populations to continue their historic practice of harvesting 
migratory birds for subsistence and local use. It will do so 
without placing any additional pressure on bird populations 
that are so important to both American sportsmen and 
conservation groups.
    In fact, legalizing and controlling this traditional native 
harvest will permit better stewardship of migratory bird 
populations by permitting better accounting of total harvesting 
each year.
    Again, I welcome all of our distinguished guests. Now I 
would like to call upon the distinguished Senator from Alaska, 
Senator Murkowski.
    Senator Murkowski. Thank you very much, Senator Hagel. I 
appreciate the opportunity to appear before this committee with 
which I served for so many years. As you know, my first choice 
was the Finance Committee. I think it took some 15 years or so 
to get that spot, and, unfortunately, I had to give up the 
Foreign Relations Committee.
    But I want to defer to our Lieutenant Governor, who 
journeyed down here from Alaska. Then I will make my statement.
    Let me say that it is a pleasure to have you down here, 
Fran, and I look forward to hearing the position of the State 
of Alaska.
    Senator Hagel. Mr. Chairman, thank you, and, again, 
welcome, Lieutenant Governor Ulmer. We are pleased to have you.

  STATEMENT OF HON. FRAN ULMER, LIEUTENANT GOVERNOR, STATE OF 
                             ALASKA

    Lieutenant Governor Ulmer. Thank you, Senator.
    Mr. Chairman and members of the committee, it is my great 
privilege to speak to you today on an issue that represents 
fulfillment of a goal toward which we in Alaska have long 
aspired.
    The Protocol amending the 1916 Convention for the 
Protection of Migratory Birds in Alaska and the United States 
along with a conforming Protocol to the 1936 U.S.-Mexico 
Convention provide a compelling statement that we in Alaska and 
the United States cherish the rich migratory bird resources 
that we share and the habitat upon which they depend; that we 
respect the diverse cultural traditions and the subsistence way 
of life of the indigenous people of Alaska and Canada; that we 
recognize and value the interests of conservationists and 
hunters throughout North America; and that we understand the 
imperative to expand and strengthen our partnerships for 
responsible conservation and stewardship of migratory bird 
stocks.
    Many of those at this hearing today and others who could 
not attend have worked for many years to fit the right pieces 
together to make the treaty amendments possible. In recent 
years, hunters, wildlife agencies, and conservation groups in 
Alaska have reached mutual understandings on bird conservation 
goals, broadened public involvement in migratory management, 
and engaged in cooperative action to sustain migratory bird 
populations. The resultant vision of more effective 
conservation was widely shared and discussed with 
constituencies across the Nation in a search for understanding 
and common ground.
    That common ground emerged as strongly shared appreciation 
and concern for the migratory birds themselves.
    The treaty amendments before you are fundamentally 
migratory bird conservation amendments. Presently, the 
Migratory Bird Treaty with Canada prohibits hunting migratory 
birds from March 10 to September 1. In Alaska, migratory birds 
have left large areas of northern, western, and interior Alaska 
by mid-September, and in these areas they generally do not 
return before March 10. As a consequence, much of the 
traditional harvest of migratory birds in rural Alaska has 
taken place and continues to take place during the closed 
season portion of the year.
    In Alaska, prohibitions on traditional hunting practices 
have been enforced on a very limited basis. But subsistence 
hunters in Alaska want to hunt within the law when they take 
what is often the first meat that is available in the spring 
and the promise of winter's end as well as an important part of 
their food supply. They want to participate with stakeholders 
elsewhere in the management of the birds they share in common.
    This long-standing inequity has fostered regional and 
cultural barriers to communication between hunters and 
agencies, harvest monitoring, identification of conservation 
concerns, and local involvement in developing cooperative 
management actions.
    I want to say that from Alaska's perspective, these 
amendments represent an outstanding achievement in migratory 
bird conservation. This is because, while they acknowledge the 
importance of subsistence use of birds, the amendments also 
recognize the willingness of those who are most affected by 
this agreement to join with State and Federal Governments in 
effective hunting regulation, habitat protection, enforcement, 
research, and education. It is this vision of a future in which 
hunters, conservationists, and wildlife managers work together 
in managing migratory birds that provides me with the greatest 
sense of satisfaction and optimism for the future of our 
magnificent migratory bird resource.
    I trust the committee will come to the same conclusion and 
act favorably on the amendments.
    In closing, I would like to join with others in dedicating 
my testimony on behalf of the State of Alaska to the memory of 
Mollie Beattie. As Director of the U.S. Fish and Wildlife 
Service before her recent death, Mollie played a crucial role 
in inspiring all participants in the negotiations to develop a 
collective vision of cooperative management and conservation. 
It is in large measure through her efforts that the treaty 
amendment process has come successfully to this effort.
    Thank you very much.
    Senator Hagel. Lieutenant Governor, thank you very, very 
much. Mr. Chairman, would you like to say a few words?

  STATEMENT OF HON. FRANK MURKOWSKI, U.S. SENATOR FROM ALASKA

    Senator Murkowski. Thank you very much.
    First of all, let me commend the Lieutenant Governor for 
her statement. I totally agree with the presentation that she 
has made on behalf of the State of Alaska.
    I am going to ask that my entire statement be entered into 
the record as if read. I am going to highlight a few points 
that I think need some clarification. Since we don't see each 
other very often, this might be of interest to her and we can 
comment on it later because it is not on the subject at all, 
but it is on another subject.
    Senator Hagel. Glad we could do a little Alaska business in 
here.
    Senator Murkowski. I am happy to have this opportunity to 
establish a dialog.
    First of all, a lot of people misunderstand this issue. The 
traditional use by Alaska's native people of migratory birds is 
a simple reality in that when the season traditionally opens, 
the birds have left the area where many of our indigenous 
people have frequently hunted and fished--in other words, in 
the far north. The reality is that the birds are gone in the 
fall, when the season opens. So the question is what kind of 
opportunity can be made to insure that the traditional use of 
the spring hunt can continue under a controlled management 
scheme that involves enforcement by the native people as well 
as a voice in the management.
    So it is very important to the native people of Alaska. It 
is important for management because the treaty allows 
accounting for the take during the spring harvest.
    I might add that this is supported by the Alaska Department 
of Fish and Game and, to my understanding, the Wildlife 
Management Institute as well.
    Now there has been resistance from time to time by sports 
hunters on the principle that you should not take birds in the 
spring. But scientific evidence does not bear out that 
contention, that this relatively insignificant number of birds 
is harmful by any means.
    So, as a consequence, what we have here is a revision of 
the 1916 Convention for the Protection of Migratory Birds, 
which was a treaty based on migratory bird conservation 
programs in North America. However, the original treaty did not 
adequately provide for the spring migratory bird harvesting in 
the north in spite of the fact that it was a centuries old 
practice, which certainly has cultural and nutritional aspects 
associated with it. It is important, as well, to Alaska's 
indigenous people and the aboriginal people of Canada.
    So what we did for a long time is we had just a 
nonenforcement approach. I can recall one instance years ago 
when the U.S. Fish and Wildlife Service decided to enforce the 
taking of birds in the spring and in Point Barrow, one of the 
residents brought a bird into the village and was promptly 
arrested by the U.S. Fish and Wildlife Service. The next day 
there were probably 200 villagers who walked in with a bird and 
that ended the process of what to do about the problem.
    So for a long time it was simply ignored. I am glad to see 
that we are not ignoring it today.
    The one change I would propose is an issue of fairness. 
Negotiators saw that in some cases it might be appropriate for 
village councils to have the option of inviting individuals who 
no longer reside in the village to return to that village, 
either to assist family members in the village or to allow 
relatives to share some cultural exchange.
    The letter of transmittal refers to this as an option only 
for Alaska natives. I believe that, in fairness, this option 
must also be open to non-native families living in the village 
or use words to that effect.
    What we have here is suggested language that the term 
``indigenous inhabitants'' might be included. This would 
include other residents of the village, not exclusively native, 
who clearly were dependent, to some extent traditionally or for 
their livelihood, on the availability of that. I offer that 
consideration based on the issue of equity and fairness--
indeed, the possibility that the structure could be maintained 
through an association of the people in the village to 
determine just how broad that inclusion would be.
    That is the extent of my presentation, Mr. Chairman, 
relative to the migratory birds.
    I would like the opportunity to speak very briefly, if I 
may, on the U.S.-Mexico Maritime Boundary Treaty, if you would 
allow me that privilege.
    Senator Hagel. Yes. Absolutely.
    Senator Murkowski. I very much appreciate that.
    Mr. Chairman, the opportunity to present my views, from my 
perspective as chairman of the committee on Energy and Natural 
Resources on the U.S.-Mexican Maritime Boundary Treaty is one 
that I have looked forward to for some time because I have 
urged this committee to favorably report and my colleagues in 
the Senate to ratify the treaty before we adjourn this fall. 
Senator Helms has been very responsive in considering this. I 
think that Senate ratification of the treaty is a timely one. 
It is appropriate because, currently, our domestic energy 
solution and heavy U.S. reliance on foreign oil imports is a 
reality.
    We now import more than 53 percent of our daily crude oil 
consumption and that number is expected to rise to 
approximately 60 percent in just a few years.
    This situation I think leaves us very susceptible to future 
supply disruptions and creates a great imbalance in payments 
and foreign trade because of the tremendous outflow of U.S. 
dollars to purchase foreign crude oil.
    Further, I think it jeopardizes the national energy 
security of our Nation.
    It is rather interesting to reflect that in the 1973-1974 
timeframe, when we were 34 to 37 percent dependent on imported 
oil, we created the Strategic Petroleum Reserve out of 
necessity, saying we simply had to do something and if we ever 
got to 50 percent, why we would simply have to seek relief.
    Well, we have exceeded 50 percent. We are starting to sell 
off SPRO to meet budget obligations. It is pretty hard to 
understand whether the right hand knows what the left hand is 
doing, and, clearly, our Nation's energy policy needs revision.
    But in any event, the Gulf of Mexico and my State of Alaska 
particularly, and elsewhere in the U.S., have a tremendous 
potential of untapped reserves of crude oil and national gas 
that can be brought to market in an environmentally responsible 
manner to fuel our Nation's economy and stem the tide.
    Enactment of the Deep Water Royalty Relief Act in the last 
Congress was put through by Senator Johnston and I. It had a 
tremendous potential impact on oil and gas exploration and 
development on the Federal Outer Continental Shelf, in the 
Central and Western Gulf of Mexico, in water in depths of 
2,000, 3,000, 4,000, and 5,000 feet or more. We have seen sales 
in that area--they are now drilling in 3,000 feet--as the 
technology advances.
    As a consequence, oil and gas production in the Gulf is 
expected to double. New jobs will be created in that area. 
Substantial economic benefits will be realized, and I am very 
pleased to see that the Gulf area certainly supports that level 
of activity. The technology that is going along with it has 
insured that the elements of risk have been reduced 
dramatically.
    Yet, as promising oil and gas tracts are purchased and 
developed in the deep water areas of the Gulf of Mexico, 
companies are moving closer and closer to that 200 nautical 
mile international maritime boundary. Settling a permanent 
boundary between the U.S. and Mexico in the Gulf will allow an 
orderly acquisition and development of oil and gas leases along 
the U.S. side of the international line to continue. It will 
provide the framework for resolving potential issues in the 
future concerning reservoirs that might straddle the 
international line.
    Finally, Mr. Chairman, establishment of a permanent 
international maritime boundary will enable the U.S. and Mexico 
to delimit an area in the Western Gulf, commonly referred to as 
a ``donut'' hole. As the Lieutenant Governor knows, we have a 
donut hole off Alaska that we share with Russia. The earlier 
you are to determine where that line is, the better off you 
will be.
    In any event, the donut hole between the U.S. and Mexico is 
the area which is believed now to contain significant oil and 
gas resources. It lies outside each country's designated 
waters, and we are hopeful that a resolution of the permanent 
boundary will facilitate agreements over divisions in that area 
that I think has such great promise.
    Finally, Mr. Chairman and members of the committee, I am 
not aware of any reason why this treaty should not be ratified. 
From an energy perspective, which is where I come from, it is 
important that the Senate act swiftly to ratify it so that the 
great progress we are making in the Gulf can continue.
    I would urge my colleagues to support the U.S.-Mexico 
Maritime Boundary Treaty and I thank you for the opportunity. I 
would be happy to respond to any questions.
    [The prepared statement of Senator Murkowski follows:]
            Prepared Statement of Senator Frank H. Murkowski
    Mr. Chairman and Members of the Committee, I appreciate the 
opportunity to present a few brief words from my perspective as 
Chairman of the Committee on Energy and Natural Resources about the 
U.S. - Mexico Maritime Boundary Treaty. I urge the Committee to 
favorably report and my colleagues in the full Senate to ratify the 
treaty before we adjourn this Fall.
    Senate ratification of the treaty is timely and appropriate because 
of our current domestic energy situation and heavy U.S. reliance on 
foreign imports of oil. We now import more than 50 percent of our daily 
crude oil needs, and that number is expected to rise to well above 60 
percent in just a few short years. This situation leaves us susceptible 
to future supply disruptions, and causes a great imbalance in payments 
in foreign trade because of the tremendous out-flow of U.S. dollars to 
purchase foreign crude oil.
    In the Gulf of Mexico and my state of Alaska -- and elsewhere in 
the U.S. -- we have tremendous untapped reserves of crude oil and 
natural gas that can be brought to market in an environmentally 
responsible manner to fuel our national economy and stem the tide of 
imported crude oil.
    Enactment of the Deep Water Royalty Relief Act in the last Congress 
has had a tremendous positive impact on oil and gas exploration and 
development of the federal Outer Continental Shelf in the Central and 
Western Gulf of Mexico in water depths of two, three, four, five 
thousand feet or more. Since enactment of that important legislation, 
four lease sales in the deep water Gulf have brought $2.3 billion to 
the U.S. Treasury. The last two lease sales alone have fetched more 
than $1.2 billion in cash bonus bids. As a result, oil and gas 
production in the Gulf is expected to double, new jobs will be created, 
and substantial economic benefits will be realized.
    Yet, as promising oil and gas tracts are purchased and developed in 
the deep water areas of the Gulf of Mexico, companies are moving closer 
and closer to the 200-nautical-mile international maritime boundary. 
Great technological advances are making it possible to safely recover 
oil and gas deposits that heretofore were thought to be unrecoverable 
or were not even known to exist. Settling a permanent boundary between 
the U.S. and Mexico in the Gulf will allow the orderly acquisition and 
development of oil and gas leases along the U.S. side of the 
international line to continue, and will provide the framework for 
resolving potential issues in the future concerning reservoirs that 
might straddle the international line.
    In addition, Mr. Chairman, establishment of a permanent 
international maritime boundary will enable the U.S. and Mexico to 
delimit an area in the Western Gulf commonly referred to as the 
``doughnut hole.'' This area, which also is believed to contain 
significant oil and gas resources, lies outside of each country's 
waters. We are hopeful that resolution of the permanent boundary will 
facilitate agreement over division of that area of such great promise.
    Mr. Chairman and Members of the Committee, I am not aware of any 
reason why this treaty should not be ratified. From any energy 
perspective, it is important that the Senate act swiftly to ratify it 
so that the great progress we are making in the Gulf can continue. I 
urge my colleagues to support the U.S. Mexico Maritime Boundary Treaty.
    I thank the Chairman and the Members of the Committee.

    Senator Hagel. First, on behalf of the committee, Mr. 
Chairman, thank you for what you have done and your leadership 
and involvement in both areas.
    As you suggested, Chairman Helms has said that he wants to 
move forward on both of these protocols quickly, and I assume 
we can look forward to some dispatch as to how we will take 
action in the full committee and then move it to the Senate 
floor.
    Mr. Chairman, last night, in reviewing the history of these 
protocols, I noted back in some of the testimony in 1980, when 
you may have been a member of this committee----
    Senator Murkowski. I came in in 1980, but I really got 
aboard in 1981. So I want to be careful here.
    Senator Hagel. All right, and I appreciate your sense of 
full disclosure here.
    Senator Murkowski. I have learned.
    Senator Hagel. That seems to be important in this town, or 
maybe lack thereof--as may be more appropriate.
    Senator Murkowski. To a point, yes.
    Senator Hagel. I noted your former colleague and my friend 
and former predecessor, United States Senator from the State of 
Nebraska, the late Ed Zorinsky, I noted his involvement in much 
of this debate with the now-distinguished chairman of this 
committee, Mr. Helms.
    So, as you know, this has been around for some time, as you 
have noted in your testimony and your comments. We will move 
with dispatch.
    I want you to know that as well, Lieutenant Governor. We 
will work hard to get it done.
    If you have any additional thoughts or points to make, 
please feel free to contact anyone on our committee--me, 
Chairman Murkowski or Chairman Helms.
    Lieutenant Governor Ulmer. Thank you.
    Senator Hagel. Thank you. Thank you both very much.
    Senator Murkowski. Thank you. I appreciate the opportunity. 
I do remember Ed Zorinsky. I think his wife's name was Cici.
    Senator Hagel. Yes.
    Senator Murkowski. He was a fine representative from your 
State, a great gentleman, and an outstanding Senator. We miss 
him.
    Senator Hagel. Thank you. I will pass that on. I keep in 
touch with his family. So thank you.
    Lieutenant Governor, thank you very much.
    If I could, I would ask the next two witnesses to come 
forward. I believe we have two witnesses from the 
administration. We have Ms. West, whom I have introduced. Maybe 
if I could keep this just a little more coordinated, I would 
ask Director Clark to come up as well.
    Ms. West, I understand you are winging your way somewhere. 
Is that correct?
    Ms. West.  I am, yes.
    Senator Hagel. Well, even if that is not correct, we 
welcome you. We welcome Director Clark as well.
    Ms. West, if you would like to offer your testimony, thank 
you.

  STATEMENT OF MARY BETH WEST, DEPUTY ASSISTANT SECRETARY OF 
STATE FOR OCEANS, SCIENCE AND TECHNOLOGY, BUREAU OF OCEANS AND 
       INTERNATIONAL ENVIRONMENTAL AND SCIENTIFIC AFFAIRS

    Ms. West.  Thank you very much, Mr. Chairman. We thank you 
for inviting us to testify today in support of the 1978 treaty 
between the United States and Mexico establishing maritime 
boundaries in the Gulf of Mexico and in the Pacific Ocean.
    I have submitted written testimony for the record and I 
will summarize that testimony in an oral statement today.
    With me today is Bob Smith, who is a geographer and 
maritime boundary expert in the Office of Oceans Affairs. He is 
going to point out some of the boundaries for you, although I 
apologize that the map here is a little hard to read. There are 
maps attached to the testimony which I submitted.
    This treaty delimits the maritime jurisdiction of the 
United States and Mexico where the 200 Exclusive Economic Zones 
of the 2 countries would otherwise overlap.
    The potential for overlapping U.S.-Mexico maritime claims 
became apparent in 1976 and 1977, when the United States 
extended its fisheries jurisdiction to 200 nautical miles. 
Mexico had established a 200 nautical mile Exclusive Economic 
Zone in 1976.
    The treaty establishing maritime boundaries between the 
United States and Mexico was signed in 1978. Mexico ratified 
the treaty in 1979, and the treaty was transmitted to the U.S 
Senate for its advice and consent to ratification that same 
year.
    Mr. Mark Feldman, Deputy Legal Adviser for the State 
Department, presented testimony before this committee on June 
30, 1980. The views expressed by the administration in that 
statement are still applicable today, and I have submitted a 
copy of that statement for the record.
    The United States 200 mile fishery jurisdiction claim, 
which was made in accordance with the Fishery Conservation and 
Management Act of 1976 and which later became an Exclusive 
Economic Zone in 1983, encompassed an ocean area of 
approximately 2.8 million square nautical miles. This 
legislation created about 30 situations where boundaries would 
need to be established where our opposite and adjacent 
neighbors were less than 400 miles from our coasts. Mexico was 
one of these.
    The U.S. and Mexico, through an exchange of notes, 
established provisional maritime boundaries on November 24, 
1976, and those lines were confirmed in the treaty signed on 
May 4, 1978. The treaty established boundary segments off our 
Pacific Coast and in the Gulf of Mexico. The Pacific Coast 
boundary is shown here (indicating) on the chart. It extends 
slightly to the northwest and then takes a turn to the south; 
and then it extends to the southwest.
    As for the boundary in the Gulf of Mexico, on this boundary 
you will see that there are two segments. There is a segment 
running from the west into the Gulf. There is then a gap in 
that area which I will refer to as ``the gap.'' That is what 
Senator Murkowski referred to as the ``donut hole.'' Then there 
is another segment in the middle of the Gulf.
    The gap is approximately 129 nautical miles in length. It 
is where the coastlines of the U.S. and Mexico are more than 
400 miles apart.
    This area beyond 200 miles was not delimited in 1978 for 
two reasons. First is because the outer limit of the 
Continental Shelf was a matter under negotiation at that time 
in the Conference on the Law of the Sea. Second is because the 
water depths in this gap made the area not commercially 
accessible at the time.
    We have this area under active review and we intend to 
pursue establishment of a Continental Shelf Boundary in this 
area once the 1978 treaty is in force.
    The boundaries established by the 1978 treaty with Mexico 
were developed using an equidistant methodology. This involved 
calculation of a line that was equally distant from the 
coastlines of both countries, including islands. Giving effect 
to islands off the coast is in the general U.S. interest and 
has been our consistent policy and practice.
    Following the 1980 hearings, this committee voted 
unanimously in favor of the treaty. Prior to a full Senate 
vote, however, one Senator asked that a further resource study 
be conducted for the Gulf of Mexico. This study was completed 
in early 1981 and did not change the view of the administration 
that the boundary treaty was a fair and balanced agreement that 
serves the United States' strategic and resource interests.
    However, because the depth in the waters of the area did 
not admit of exploration and production in the early 1980's, 
the interests in pressing for the treaty at that point were not 
immediate. Because our boundary experts were deeply involved in 
other pressing boundary issues, including the Gulf of Maine 
arbitration with Canada, the treaty with Mexico was not moved 
forward at that time.
    Now, Mr. Chairman, you may ask why we hope that the treaty 
will be acted upon now, after almost 20 years. In the early 
1980's, our offshore oil and gas industry focused on areas 
relatively near the shore. This situation has changed 
significantly in recent years. Not only are the oil and gas 
companies interested in leasing blocks adjacent to the 1978 
boundary--and, in fact, such leases are on the books now--but 
interest also extends to the area beyond 200 miles in the 
western Gulf in the gap.
    Thus, now is a time when for commercial reasons industry 
needs the certainty provided by this boundary, and we 
understand that the oil and gas industry fully supports its 
ratification.
    Mr. Chairman, for these reasons we feel the time is right 
to have this important treaty enter into force and we ask that 
this committee and the full Senate act favorably on the treaty.
    Thank you very much. I would be pleased to answer 
questions.
    [The prepared statement of Ms. West follows:]
                  Prepared Statement of Mary Beth West
Mr. Chairman and members of the Committee:
    Thank you for inviting me to testify today in support of the 1978 
Treaty between the United States and Mexico establishing maritime 
boundaries in the Gulf of Mexico and in the Pacific Ocean.
    This treaty delimits the maritime jurisdiction of the United States 
and Mexico where the 200 mile exclusive economic zones of the two 
countries would otherwise overlap. The potential for overlapping U.S.-
Mexico maritime claims became apparent in 1976 when the United States 
extended its jurisdiction over fisheries to 200 nautical miles; Mexico 
had established a 200 nautical mile exclusive economic zone in 1976.
    The treaty establishing maritime boundaries between the United 
States and Mexico was signed in 1978. Mexico ratified the treaty in 
1979, and the treaty was transmitted to the U.S. Senate for its advice 
and consent to ratification that same year. Mr. Mark Feldman, Deputy 
Legal Adviser for the State Department, presented testimony before this 
committee on June 30, 1980. The views expressed by the administration 
in that statement are still applicable today, and I would like to 
submit a copy of that statement for the record.
    The United States 200-mile fishery jurisdiction claim, which was 
made in accordance with the Fishery Conservation and Management Act of 
1976, encompassed an ocean area of approximately 2.8 million square 
nautical miles. This legislation created about 30 situations where 
boundaries would need to be established where our opposite and adjacent 
neighbors were less than 400 miles from our coasts. Our 200-mile zone 
(which became an exclusive economic zone in 1983) overlapped the 
potential zones of Canada (off the Atlantic, Pacific, and Arctic 
coasts), of the former Soviet Union (in the North Pacific Ocean, Bering 
Sea, and Arctic Ocean), of The Bahamas and Cuba, off the coasts of the 
southeastern United States, and of Mexico in the Gulf of Mexico and 
Pacific Ocean.
    For the territories and possessions of the United States, the 200-
mile claim raised maritime boundary questions with the Dominican 
Republic, Venezuela, the Netherlands, and the United Kingdom in the 
Caribbean. In the Pacific, 200-mile zones drawn from the Northern 
Marianas, Guam, American Samoa, and other territories created potential 
maritime boundary issues with Japan, Tonga, Samoa, Niue, Cook Islands, 
New Zealand (on behalf of Tokelau), Kiribati, the Federated States of 
Micronesia, and the Marshall Islands.
    Mr. Chairman, when the administration testified in 1980, we 
reviewed the background of the United States policy as it pertained to 
the establishment of maritime boundaries with its neighbors. I will not 
reiterate all this information at this time, but I would be more than 
happy to answer any questions you and your committee may have on our 
general policy.
    The U.S. and Mexico through an Exchange of Notes established 
provisional maritime boundaries on November 24, 1976, and those lines 
were confirmed in the treaty signed on May 4, 1978. The treaty 
established boundary segments off our Pacific coast and in the Gulf of 
Mexico. In the western Gulf of Mexico there is a gap between the 
boundary lines, approximately 129 nautical miles in length, where the 
coastlines of the U.S. and Mexico are more than 400 miles apart. This 
area beyond 200 miles was not delimited in the 1978 treaty for two 
reasons: first, because, the outer limit of the Continental Shelf was a 
matter under negotiation at the time in the conference on the law of 
the sea, and second, because the water depths in this gap made the area 
not commercially accessible at the time. We have this area under active 
review and intend to pursue establishment of a Continental Shelf 
boundary in this area once the 1978 treaty is in force.
    The boundaries established by the 1978 treaty with Mexico were 
developed using the equidistant methodology. This involved calculation 
of a line that was equally distant from the coastlines of both 
countries, including islands. Giving effect to islands off the U.S. 
coast is in the general U.S. interest and has been our consistent 
policy and practice.
    Following the 1980 hearings, this Committee voted unanimously in 
favor of the treaty. Prior to a full Senate vote, however, one senator 
asked that a further resource study be conducted for the Gulf of 
Mexico. This study was completed in early 1981 and did not change the 
view of the administration that the 1978 boundary treaty was a fair and 
balanced agreement that serves United States strategic and resource 
interests. However, because the depth of the waters in the area did not 
admit of exploitation in the early 1980s, the interests in pressing the 
treaty at that point were not immediate; and, because our boundary 
experts were deeply involved in other pressing boundary issues, 
including the Gulf of Maine Arbitration with Canada, the treaty with 
Mexico was not moved forward at that time.
    Mr. Chairman, you may ask why we hope the treaty will be acted upon 
now, after almost 20 years. In the early 1980's our offshore oil and 
gas industry focused on areas relatively near the shore. This situation 
has changed significantly in recent years. Not only are the oil and gas 
companies interested in leasing blocks adjacent to the 1978 boundary, 
but interest extends to the area beyond 200 miles in the western Gulf 
of Mexico - in the gap. Thus, now is a time when, for commercial 
reasons, industry needs the certainty provided by a boundary agreement, 
and, we understand that the U.S. oil and gas industry supports 
ratification.
    Mr. Chairman, for these reasons we feel the time is right to have 
this important treaty enter into force, and I ask that this Committee, 
and the full Senate, act favorably on the treaty.
    Thank you, Mr. Chairman.
    
    
Prepared Statement of Mark B. Feldman, Deputy Legal Adviser, Department 
of State before the Senate Committee on Foreign Relations June 30, 1980
Dear Mr. Chairman.
    I welcome the opportunity to testify today in support of three 
significant treaties that establish maritime boundaries between the 
United States and Mexico, between the United States and Cuba, and 
between the United States and Venezuela off the coasts of Puerto Rico 
and the U.S. Virgin Islands.
    These treaties are necessary to delimit the United States 
Continental Shelf in these areas and to resolve overlapping claims of 
jurisdiction arising out of the establishment of a 200 nautical mile 
fishery conservation zone off the coasts of the United States in 
accordance with the Fishery Conservation and Management Act of 1976 and 
the establishment of 200 nautical mile zones by neighboring countries.
    The U.S. Fishery Conservation Zone created by act of Congress as of 
March 1, 1977, encompasses approximately 2.8 million square nautical 
miles of waters. Together with reciprocal actions by other States, this 
act created more than thirty new boundaries between areas of United 
States fisheries jurisdiction and those of other nations. Such boundary 
questions arise with neighboring states adjacent to the United States 
and with opposite states wherever the coasts of the two countries are 
less than 400 nautical miles apart,
    Thus, the 200 mile zone off the coasts of the Continental United 
States abuts that of Canada in the Atlantic Ocean, in the Beaufort Sea, 
and in two places on the Pacific Coast. It abuts the 200 mile zone of 
the Soviet Union in the Bering and Chukchi Seas, and the North Pacific 
Ocean, where the maritime boundary is determined by the 1867 convention 
with Russia in connection with the purchase of Alaska, and it borders 
the Mexican 200 mile zone in the Pacific Ocean and in the Gulf of 
Mexico. It also borders on the 200 mile zone of Cuba and the Bahamas 
off the coasts of the Southeastern United States. Similar boundary 
situations arise in the Caribbean between Puerto Rico and the U.S. 
Virgin Islands and the Dominican Republic, Venezuela, and a number of 
islands including the British Virgin Islands. In the Pacific our 200 
mile zone off American Samoa, Guam and other island territories creates 
maritime boundaries with Tonga, Western Samoa, the Cook Islands, the 
Trust Territory, and several other islands including the new country of 
Kiribati.
    Most of these boundaries remain to be established by agreement, 
although the United States has exercised sovereign rights over the 
resources of the Continental Shelf since the, Truman Proclamation of 
1945, the need to define the boundaries of our Continental Shelf with 
other nations has only recently become a matter of practical concern as 
the technical ability to exploit the hydrocarbon resources of the 
Continental shelf has developed.
     The problem of maritime boundary delimitation became urgent, 
however, with the extension of fisheries jurisdiction out to 200 miles. 
Precise limits are needed for purposes of fisheries management and law 
enforcement, and that need forced the issue of international maritime 
boundaries to the fore.
    In anticipation of legislative action, the State Department 
established in 1975 an interagency group to develop a U.S. maritime 
boundary position. I chaired that group for the Department's legal 
adviser, and it included representatives of other interested bureaus in 
the Department and representatives of the Departments of the Interior, 
Commerce, Defense, Energy and Transportation (Coast Guard). The task of 
this group was to identify in each situation the maritime boundary that 
would maximize United States resource and security interests consistent 
with international law and friendly relations with our neighbors.
    Recognizing that it would not be possible to conclude boundary 
agreements with most of our neighbors before establishment of the 
Fishery conservation Zone on March 1, 1977, the United States published 
the provisional limits of that zone on March 7, 1977, ``pending the 
establishment of permanent maritime boundaries by mutual agreement.''
    Subsequently, we have pursued negotiations with several nations and 
have concluded the three treaties before the committee today; the 
treaty with Canada, submitting the maritime boundary in the Gulf of 
Maine area to international adjudication, which the committee has under 
review, and a treaty with the Cook Islands which was signed on June 11 
and which will be transmitted to the Senate in due course for advice 
and consent to ratification. Other boundary negotiations are being 
undertaken and we intend to work to achieve agreements on all U.S. 
maritime boundaries as soon as possible.
    With this background, I would like to turn to the three pending 
treaties with our Latin American neighbors. These are the first 
treaties establishing Continental Shelf and 200 nautical mile fisheries 
boundaries to be signed by the United States and submitted to the 
Senate. They are important treaties that demonstrate that the United 
States can reach peaceful agreements with our neighbors on sensitive 
issues of sovereign rights and jurisdiction. We hope this committee 
will report them favorably and that the Senate will advise and consent 
to their ratification at an early date.

Mexico:

    I would like to consider first the treaty on maritime boundaries 
between the United States of America and the United Mexican States, 
signed at Mexico City, May 1978. The United States and Mexico first 
agreed upon maritime boundaries in 1970 in the treaty to resolve 
pending boundary differences and maintain the Rio Grande and the 
Colorado River as the international boundary between the United States 
of America and the United Mexican States. The 1970 treaty, in addition 
to dealing with the land frontier, established a maritime boundary in 
the Pacific Ocean and the Gulf of Mexico to a distance of 12 nautical 
miles from the coast. The establishment of 200 nautical mile zones by 
our two countries made it necessary to reach agreement on the seaward 
extension of those boundaries out to 200 nautical miles. The two 
governments concluded an exchange of notes establishing provisional 
maritime boundaries on November 24, 1976, and that line was confirmed 
in the treaty signed on May 4, 1978.
    The 200 mile zones established from the coasts of the United States 
and Mexico overlap in three areas: off the Pacific Coast and in the 
Western Gulf of Mexico where the U.S. and Mexican coasts are adjacent, 
and in the Eastern Gulf of Mexico where Mexico's 200 mile zone 
developed from certain islands and the Yucatan Peninsula opposite the 
Louisiana Coast overlaps the U.S. 200 mile zone.
    In the Central Gulf of Mexico there is a reach of waters 
approximately 129 nautical miles in length where there is no fisheries 
boundary between the two countries. In this area the coasts of the two 
countries opposite each other are more than 400 nautical miles apart, 
so our fisheries zones do not overlap. We have not drawn a Continental 
Shelf boundary in this area for the time being because the limit of the 
outer edge of the Continental margin is presently a matter under active 
negotiation at the Third United Nations Conference on the Law of The 
Sea. In respect of this process and in view of the fact that water 
depths in this area do not readily admit of exploitation at the present 
time, it was decided that there is no immediate need to determine a 
boundary in this area. We intend to keep this matter under active 
review and at such time as may be appropriate establish a maritime 
boundary with Mexico in this area.
    Mr. Chairman, I am aware that one scholar has questioned the use of 
islands as base points for the boundary line in the Gulf of Mexico. 
This practice follows the precedent of the 1970 treaty, but the 
argument is made that the agreement gives Mexico more area in the deep 
waters of the East Central Gulf than should be the case. In considering 
this issue, the committee should note that the use of islands as base 
points gives the United States substantial areas in the Pacific off the 
Coast of California. These Pacific areas have hydrocarbon potential and 
are also of considerable interest to U.S. fishermen. There may also be 
hydrocarbons in the seabed under the waters of the East Central Gulf, 
but these areas are under deep waters and will not be exploited for 
some years. There are not significant fisheries in that area.
    I can assure, Mr. Chairman, that before making this agreement the 
Department of State solicited the best available expert advice 
including scientists at the U.S. Geological Survey and at Woods Hole 
Oceanographic Institute and the U.S. fishing industry. We contacted 
interested Members of Congress at an early stage, and the agreement was 
and is supported by all interested agencies of the United States 
Government.
    Moreover, the approach followed in the treaty with Mexico is 
consistent with the general U.S. interest in giving full effect to 
islands off the U.S. coast. The boundary agreement with Cuba, for 
example, gives full effect to the Florida Keys. The United States has 
other important island interests including the Alexander Archipelago in 
Southeastern Alaska which affects the maritime boundary with Canada in 
and seaward of Dixon Entrance.
    Finally, this agreement is a further example of the efforts of the 
United States and Mexico to work together as equals to solve problems 
on the basis of mutual interest. Ratification of the agreement will 
strengthen relations between the United States and Mexico by settling 
an issue which could become contentious if left unresolved.
Cuba:

    The maritime boundary agreement between the United States of 
America and the Republic of Cuba signed at Washington December 16, 
1977, establishes the boundary in the straits of Florida and the 
Eastern Gulf of Mexico, it begins in the west at a point 200 nautical 
miles from each coast and continues through the Eastern Gulf and 
Straits of Florida to a potential trijunction point with the Bahamas. 
At its closest point the boundary is approximately 38 nautical miles 
from the U.S. coast.
    As you will recall, in the spring of 1977 the United States resumed 
direct, formal discussions with the Cuban Government for the first time 
in many years. The Maritime Boundary Agreement was one of the first 
items on the agenda for those talks because both countries recognized 
the need to avoid incidents over that issue. At that time discussions 
were held in New York and Havana, and on April 27, 1977, the parties 
concluded a modus vivendi establishing a line which served as the 
boundary for 1977. Following further negotiations in 1977, a boundary 
treaty was signed in Washington on December 16, 1977.
    That agreement provided for provisional application of the boundary 
line for two years from January 1, 1978. When that period expired on 
January 1, 1980, the parties by exchange of notes extended provisional 
application of the boundary line for another 24 months. The 
establishment of the boundary with Cuba proved to be a complex 
technical task due to the difference in charts utilized by the two 
countries and other technical issues, but the negotiations were 
conducted on a businesslike basis that could be a model for how 
relations between our two countries can be conducted. Although 
relations with Cuba are seriously strained at the present time, both 
governments see advantage in concluding a permanent understanding as to 
our maritime boundary. Ratification of this treaty will remove a 
potential problem in U.S. relations with Cuba and will therefore 
contribute to the maintenance of peace and security in the area.

Venezuela:

    The Maritime Boundary Treaty between the United States of America 
and the Republic of Venezuela, signed at Caracas on March 28, 1978, 
establishes the maritime boundary off the coasts of Puerto Rico and the 
U.S. Virgin Islands in the Caribbean sea. This line is based on the 
same general principles as the agreements with Mexico and Cuba, and 
follows the line published by the U.S. when the U.S. Fishery 
Conservation Zone was established in 1977. The Caribbean Regional 
Fishery Management Council and the authorities in the U.S. Virgin 
Islands and Puerto Rico were consulted prior to the establishment of 
the U.S. boundary position in this area and concurred in this line.
    The three treaties have discussed this morning all follow a similar 
format. Each contains the geographic coordinates of the boundary and 
technical information concerning the establishment of the boundary. 
Each contains an article which describes the legal effect of the 
boundary: that neither country shall claim nor exercise for any purpose 
sovereign rights or jurisdiction over the waters or seabed and subsoil 
on the other country's side of the boundary line. Each treaty also 
provides that establishment of the boundary does not affect or 
prejudice either country's position concerning the maritime 
jurisdiction that may be claimed by the other country. This disclaimer 
was deemed necessary as many of these countries assert claims of 
jurisdiction over the high seas not recognized by the United States.
    Mr. Chairman, as I noted previously, the U.S. position in the 
negotiation of these treaties was adopted after a full interagency 
review of legal questions and resource considerations and consultation 
with interested constituents and Members of Congress, we believe all 
three treaties are advantageous to the United States and fair to the 
other party. Ratification of these treaties will resolve issues with 
neighboring states which could become contentious and difficult if they 
are left unresolved.
    Before I conclude my remarks, I would like to note that much of the 
work required to establish our boundary position, in general and in 
these cases, was carried through by Dr. Robert D. Hodgson who passed 
away last December. Dr. Hodgson was geographer of the Department of 
State for ten years and a world renowned expert in this field. He was a 
dedicated American, respected everywhere for his professional integrity 
as well as his expertise. The United States owes Dr. Hodgson a 
considerable debt of gratitude for his contribution to the Law of the 
Sea. The new frontiers we are creating are in significant measure a 
memorial to his work.

    Senator Hagel. Ms. West, thank you.
    Could you tell me what your timeframe is because I don't 
want to hold you up. What time do you have to leave?
    Ms. West.  I need to leave a little after 3. So I have some 
time.
    Senator Hagel. Oh, you will be out of here far sooner than 
that.
    If it is OK, Director Clark, I would address a couple of 
questions to Ms. West and then would ask you to testify. Thank 
you very much.
    Going to your map and some of the comments that you made in 
your testimony, what is the oil potential now in this area?
    Ms. West.  The area in the gap is a deep water area. It 
ranges around 10,000 feet, 10,000 to 12,000 feet. Industry now 
can explore in waters of approximately that depth and can 
exploit in waters of approximately 5,000 feet.
    As I indicated, there are now leases on the line in the 
western part of the Gulf and there is actual hydrocarbon 
production within probably 50 to 60 miles of the line. So 
industry, those who have leases on the line, because of the 
large investment they need to make, need the certainty of 
knowing that this, in fact, is the boundary. Those who are 
interested in having leases in the gap are anxious to have us 
negotiate the delimitation of the boundary in the gap.
    Senator Hagel. When you talk about the western part, do you 
mean the Mexican part of this?
    Ms. West.  The line over on the western side there 
(indicating).
    Senator Hagel. Thank you.
    There was some question during the debate when this 
committee addressed it back in 1980 and in subsequent years 
about the fisheries on the Pacific side and the Gulf side. I 
think what I was told is that in 1980, there was a significant 
fishery area in four different areas, I think on the Pacific 
side, and none in the Gulf. Has that changed?
    Ms. West.  There are significant fisheries actually in both 
areas. There is a significant tuna fishery off the Pacific 
coast in the area of the islands there. There are also 
significant fisheries in the Gulf, and those fisheries have 
basically been operating in accordance with the provisional 
boundary for almost 20 years now.
    Senator Hagel. So the fishing is good?
    Ms. West.  Yes,
    Senator Hagel. In both areas?
    Ms. West.  Yes. There are significant fisheries in both 
areas.
    Senator Hagel. Thank you.
    What would be your assessment of the political impact, if 
any, of this dragging on for so long without any official 
action by the U.S., the political impact on our country and on 
our relationships with Mexico?
    Ms. West.  As we all know, treaties often are ratified 
because of public interest, that is, are concluded and ratified 
because of public interest in those treaties.
    I think that public interest in this treaty has risen over 
the years as the commercial interest in the areas affected by 
the treaty has increased. I think now is certainly a time when 
the industry is interested in having the treaty go through 
because there is a very practical reason why they need it now.
    Senator Hagel. Obviously Chairman Murkowski pointed to that 
rather effectively and has a rather intense interest in this.
    Ms. West.  Yes.
    Senator Hagel. The methodology in determining the 
boundaries, how did you figure that out?
    Ms. West.  When we originally planned to extend our 
fisheries jurisdiction back in the mid-1970's, a group was set 
up to study the methods to conclude boundaries and which 
methods would be in the U.S. interest.
    I think Mr. Feldman, who testified in 1980, sat on that 
group or chaired the group. The boundaries were basically 
established based on the principles of international law 
applied in a manner deemed to be in the overall U.S. interest.
    The establishment of equidistant lines is a standard method 
often used to establish boundaries, and it was determined to be 
in our overall interest in this case to use that methodology, 
including islands. That was the method used in this case.
    Senator Hagel. Ms. West, thank you very much. I would say 
that if you would like to leave, you are certainly welcome to 
leave. We will hear Director Clark's testimony and talk a 
little bit about her area. Then we have a panel behind the two 
of you.
    So we would very much welcome you to day, but I know you 
have other things to do. So you do what you need to do.
    Ms. West.  Thank you very much. I appreciate your 
accommodation to my schedule, too. Thank you.
    Senator Hagel. Thank you. Director Clark.

    STATEMENT OF JAMIE CLARK, DIRECTOR OF FISH AND WILDLIFE 
                SERVICE, DEPARTMENT OF INTERIOR

    Ms. Clark. Thank you and good afternoon, Mr. Chairman. 
Thank you for the opportunity to testify today concerning the 
Protocols to amend the 1916 and the 1936 Migratory Bird 
Conventions with Canada and Mexico. I will summarize my 
statement today and my entire statement I ask be included in 
the record.
    I would first like to take this opportunity to thank all 
the members of the negotiating team for their extraordinary 
work, and that it was, and to offer special thanks to the State 
Department for their work during the negotiation and 
transmission of these amendments to the Senate.
    Mr. Chairman, the amendments before you today will correct 
an 80 year old problem involving the use of migratory birds by 
native people of northern Canada and Alaska. These proposals 
will buildupon a successful conservation record for migratory 
birds and they will insure that this resource is managed 
equitably for all across political boundaries.
    I strongly urge you to recommend ratification of these 
protocols to the full Senate.
    The U.S.-Canada Convention was the first of four important 
bilateral treaties for migratory bird conservation across 
international boundaries. It established the Federal 
Government's authority to manage migratory birds and it was 
driven by concern over the unlimited hunting of migratory birds 
and the commercial exploitation of this important national 
resource.
    This partnership with Canada began a program to manage 
waterfowl that is unique in the annals of world wildlife 
conservation. Subsequent migratory bird treaties between the 
U.S. and Mexico in 1936, the U.S. and Japan in 1972, and the 
U.S. and Russia in 1976 continued this conservation tradition.
    While these treaties have been effective in protecting 
migratory bird populations, the treaties with Canada and Mexico 
did not fully acknowledge the customs and traditions of native 
people who depend on migratory birds in the spring for 
subsistence. The bilateral treaties with Japan and Russia 
recognize the legitimate needs of indigenous people. However, 
implementation of the provisions in these treaties cannot take 
place until amendments to the treaties with Canada and Mexico 
are ratified.
    The convention with Canada established a closed season, 
from March 10 to September 1, with limited exceptions. The 
treaty with Mexico has similar restrictions for duck hunting. 
These provisions have long been in conflict with the needs of 
the native people of northern Canada and Alaska who have 
traditionally harvested birds in the spring and summer. Over 
the years, both countries have struggled with the 
inconsistencies between the treaties and the actual reality of 
subsistence hunting in the far north.
    The Canadian Constitution now recognizes the rights of 
Canadian aboriginal people to a legal harvest while the treaty 
prohibits this harvest, creating a conflict that could lead to 
abrogation of the treaty.
    Ratification of these protocols would mean that, for the 
first time in history, the traditional hunting practices of 
these indigenous people will be recognized. The changes allow 
these people, stewards to some of the world's most important 
waterfowl habitat, to fully participate in the management of 
migratory bird resources. This will enhance our ability to 
gather information on the level and pattern of their harvest 
and data collection and exchange among the United States, 
Canada, and native people will be increased, expanding the 
scientific base for migratory bird management.
    The subsistence harvest represents only a small portion of 
the total continental harvest.
    The protocols will allow indigenous inhabitants in Alaska 
to legally harvest migratory birds in designated rural 
subsistence hunting areas. The Canada Protocol calls for the 
establishment of management bodies, including native, Federal, 
and State of Alaska representatives as equals. These management 
bodies will develop recommendations to the Flyaway Councils and 
the U.S. Fish and Wildlife Service to shape the regulations 
governing spring harvest.
    Implementation of the amended convention would rely on the 
current regulatory framework to monitor harvests, allow 
participation, protect species, and enforce our regulations. 
Management efforts would continue to be guided by obligations 
to share harvests among all users. As with the fall season, 
there would be no unregulated season in the spring.
    Any restriction on harvest levels necessary for 
conservation would be shared equally between users in Alaska 
and users in other States. The protocol is not intended to 
create a preference in favor of any group of users in the 
United States.
    In addition to the amendments for spring hunting, the 
treaty will be modernized in a number of notable areas. The 
amended Article II provides conservation principles important 
to the management of this resource. Article III provides for 
greater consultation among the responsible agencies and 
suggests that countries resolve identified problems in a manner 
consistent with the principles and, if necessary, conclude 
special arrangements to conserve and protect species of 
concern.
    An example of where this might assist and be very important 
in conservation is in the over-abundance of snow geese that has 
caused significant habitat destruction and impacts on other 
wildlife species. Changes in Articles IV and V are intended to 
eliminate outdated portions of the treaty and make them 
consistent with other bilateral treaties.
    The protocols represent a major step in furthering the 
conservation of migratory birds and correct a problem that has 
troubled us for many years. Properly implemented, the protocols 
will protect migratory bird populations and provide important 
harvest information for us to manage in the future.
    They will also insure that the interests of 
conservationists, sport hunters, indigenous people, and all 
others who value this magnificent resource are met. I urge 
speedy ratification of these protocols.
    Thank you, Mr. Chairman. I would be happy to answer any 
questions you might have.
    [The prepared statement of Ms. Clark follows:]
                   Prepared Statement of Jamie Clark
    Thank you for the opportunity to testify before you today regarding 
the Protocols to amend the 1916 and 1936 Migratory Bird Conventions 
with Canada and Mexico. The proposals before you today will correct a 
problem that has existed for more than 80 years involving the 
continental management of migratory birds and the use of these birds by 
Aboriginal people of northern Canada and Indigenous people of Alaska. 
We urge you to recommend ratification of this Protocol to the full 
Senate.
    The 1916 Convention between the United Kingdom and the United 
States of America for the Protection of Migratory Birds in Canada and 
United States (hereafter referred to as the U.S. Canada Convention) was 
the first of four important bilateral treaties for migratory bird 
conservation across international boundaries. It established the 
Federal Government's authority to manage migratory birds, and it was 
driven by concern over the unlimited hunting of migratory birds and the 
commercial exploitation of this important natural resource. This 
partnership with Canada began a pro gram to manage waterfowl that is 
unique in the annals of world wildlife conservation. Subsequent 
migratory bird treaties between the U.S. and Mexico (1936), the U.S. 
and Japan (1972) and the U.S. and Russia (1976) continued this 
conservation tradition.
    While these treaties have been effective in protecting migratory 
bird populations, the 1916 and 1936 treaties with Canada and Mexico 
have done so without fully acknowledging the customs and traditions of 
Native people who depend on migratory birds in the spring for 
subsistence. The more recent bilateral treaties with Japan and Russia 
do recognize the legitimate subsistence needs of Indigenous people, but 
the courts in the United States have interpreted the Migratory Bird 
Treaty Act, which implements the four migratory bird treaties, to 
require the federal government to follow the most restrictive 
provisions of the treaties. As a result, the federal government has not 
been able to implement the subsistence hunting provisions of the Japan 
and Russia treaties and will not be able to do so until amendments to 
the treaties with Canada and Mexico are ratified. Today, we ask your 
support in building upon the extraordinary conservation record made 
possible by these treaties by recommending to the full Senate that 
these two Protocols be ratified.
    The 1916 Convention with Canada established a ``closed season'' 
from March 10 to September 1 during which no hunting is permitted 
except in extremely limited circumstances. The 1936 Convention with 
Mexico established a similar March 10 to September 1 ``closed season'' 
on duck hunting. Over the years, both countries have struggled with the 
inconsistencies between the treaties and the reality of migratory 
waterfowl hunting in the far north. Native people have continued their 
traditional hunt of migratory birds in the spring and summer and 
neither government has rigidly enforced the closed season given the 
realities of life in the arctic and subarctic regions. As a result, 
discretionary non-enforcement of the prohibition on migratory waterfowl 
hunting has led to increased conflicts over migratory bird conservation 
in Alaska. Urban hunters complain of favoritism and disrespect for the 
law, and Native hunters feel stigmatized by a law which makes their 
traditional spring and summer hunts illegal. In addition, waterfowl 
managers have been handicapped by their inability to collect accurate 
spring harvest information needed to manage bird populations properly. 
Thus, the very foundation of the treaties has been threatened and we 
sought a way to legally correct the deficiencies of the original 
Migratory Bird Conventions.
    The 1916 Convention with Canada also needs to be amended to take 
into account recent changes in Canadian law and judicial determinations 
which guarantee a legal harvest. If the Protocol is not ratified by the 
U.S., Canada may have to abrogate the Treaty. The Canadian constitution 
guarantees a legal harvest for Canadian Aboriginal people, but the 
Convention as currently written prohibits this harvest. Abrogation 
would effectively end 80 years of cooperation between the governments 
of Canada and the United States in managing these migratory birds. 
Failure to correct this oversight now will also perpetuate illegal 
hunting in Alaska, incomplete harvest information, and hard feelings 
among waterfowl hunters caused by the appearance of unequal 
enforcement.
    To begin the amendment process to the Treaties, the governments 
sought extensive public comment and review in order to develop their 
respective negotiating positions. In addition, the International 
Association of Fish and Wildlife Agencies provided a forum for resource 
conservation managers, sport hunters and Native people from Alaska and 
Canada to fully address the concerns and impacts of amending our treaty 
with Canada. Following these stake holder consultations, the U.S.-
Canada Protocol was successfully negotiated by the U.S. negotiation 
team, lead by former Service Director Mollie Beattie, and made up of 
representatives of Alaska Natives, state government agencies, the 
International Association of Fish and Wildlife Agencies, sport hunters 
from the lower 48 and conservation groups in addition to personnel from 
the Fish and Wildlife Service and the Department of State. The Protocol 
was signed December 14, 1995. Similar efforts to amend the Mexico 
treaty to allow a spring harvest of ducks in Alaska and make it 
consistent with the Canada Protocol culminated in the signing of a 
Protocol on May 5, 1997. Both amendments enjoy wide support.
    The subsistence harvest in Alaska and Canada is a relatively small 
portion of the total harvest of migratory birds. Estimates for rural 
Alaskan communities indicate that 56 percent of bird harvest occurs 
during the spring to mid-summer period. The number of subsistence 
hunters in Alaska is estimated to be 10,000-13,000. It is estimated 
that a little more than 360,000 birds were harvested annually during 
all seasons for subsistence use in rural Alaska communities during the 
mid-1980's. Alaska's subsistence harvest represents about 3 percent of 
all waterfowl shot in North America. Canada's subsistence harvest 
represents about 8% and 15% of the total annual North American harvests 
for ducks and geese respectively. Clearly, there is room in the harvest 
of this migratory wildlife resource for subsistence hunting consistent 
with sound management.
    Ratification of the Protocols will promote more effective 
management by creating a basis for management and regulation of the 
spring subsistence harvest throughout Alaska and in Canada. Spring 
harvest would be acknowledged as a legitimate activity and incorporated 
into the continental management scheme. The Protocols will allow 
indigenous inhabitants in Alaska to legally harvest migratory birds 
only in designated rural subsistence hunting areas. ``Indigenous 
inhabitant'' refers primarily to Alaska Natives who are permanent 
residents of villages where subsistence hunting of migratory birds is 
customary and traditional. The term also includes permanent resident 
non-natives of these villages who have legitimate subsistence hunting 
needs.
    The Protocols will permit birds to be taken only for food. The 
Protocols do provide for the sale, in strictly limited situations, of 
authentic articles of handicraft using non-edible by-products of birds.
    The Canada Protocol calls for the establishment of management 
bodies to ensure a meaningful role for Indigenous inhabitants of Alaska 
in the conservation of migratory birds. These management bodies will 
include Native, Federal, and State of Alaska representatives as equals, 
and will develop recommendations to be submitted to the Flyway Councils 
and the Fish and Wildlife Service. The Protocol provides a mechanism 
for allowing management bodies to shape the face of the regulations for 
spring harvest. The intent is to bring practice into conformance with 
the way migratory birds are regulated at other times of the year. It is 
our intent that management and regulation of the fall harvest of birds 
will continue to operate under the Flyway Council System currently in 
place for sport harvest.
    With the amended treaties, a traditional subsistence hunt can be 
managed so as not to cause significant increases in the take of species 
of birds relative to their continental population sizes. Waterfowl 
numbers will continue to experience annual fluctuations in response to 
changing conditions. Controlling harvest by regulations is the only 
practical way waterfowl managers have found to compensate for these 
population changes.
    The ratification of these Protocols will improve conservation of 
the migratory bird resource by recognizing and legitimizing the 
traditional subsistence uses of migratory birds and by bringing 
subsistence hunters into the management scheme. The changes will allow 
Native people to fully participate in the management of the migratory 
bird resource and will enhance our information on the level and pattern 
of the harvest. Complete information on the harvest will help set 
standards for migratory birds and continue the partnership of 
continental management of the resource shared by many people. Under the 
amendments, exchanges and data collection among the United States, 
Canada, and Native people will be increased, expanding the scientific 
base for migratory bird management.
    The inclusion of subsistence hunters in management will lead to 
improved cooperation and to improved understanding of subsistence 
harvest. Implementation of the amended Conventions will rely upon the 
regulatory framework currently available to monitor harvest, control 
participation, protect species and enforce regulations. Management 
efforts would continue to be guided by obligations to share harvests 
between countries but would probably attach greater importance to 
meeting subsistence requirements than in the past. As with the fall 
season, there would be no open season in the spring without 
regulations. Any restriction in harvest levels necessary for 
conservation will be shared equally between users in Alaska and users 
in other states. The Protocol is not intended to create a preference in 
favor of any group of users in the United States.
    The point I want to emphasize is, all user groups need to be a part 
of the management scheme, for the exchange of information; for 
protection of populations from over harvest; and for the setting of 
equitable opportunities. They must share in the resource's use as well. 
The reality of subsistence harvest in the spring and summer, not only 
in Alaska but Canada as well, adds to the complexity of management in 
North America. It is important that all users are brought into the 
system of cooperative effort we have forged among the provinces, 
states, and federal agencies to improve conservation programs.
    In addition to the amendments for spring hunting, the Protocol 
modernizes the U.S.-Canadian Migratory Bird Treaty in a number of 
notable areas. The amended Article 11 provides conservation principles 
important to the management of this resource. Article III provides for 
greater consultation among the responsible agencies and suggests the 
countries resolve identified problems in a manner consistent with the 
principles and, if necessary, conclude special arrangements to conserve 
and protect species of concern. An example of where this might assist 
in conservation is the overabundance of snow geese that has caused 
significant habitat destruction and impacts on other wildlife species. 
Changes in Article IV and V are intended to eliminate outdated portions 
of the treaty and make them consistent with the other bilateral 
treaties.
    In summary, I urge speedy ratification of these Protocols so that 
we are able to broaden the continental management framework to include 
subsistence harvest of migratory birds in the spring and summer. The 
Protocols will recognize the validity of Indigenous subsistence 
harvest, manage that harvest in accordance with sound conservation 
principles, and encourage indigenous inhabitants to participate in 
management.
    Thank you for the opportunity to address the Committee.

    Senator Hagel. Director Clark, thank you very much.
    I have a couple of questions on the protocol. It is my 
understanding that, obviously, it will have some effects, as 
you have suggested, on sport hunting. Would you talk a little 
bit about what effects this will have on sport hunting in 
Alaska?
    Ms. Clark. We actually think it will have minimal to no 
effects on sport hunting in Alaska at all. The charts do help 
somewhat. But the actual subsistence hunt will not compromise 
sport hunting.
    Senator Hagel. Do the conservation principles outlined in 
the protocol significantly impact sport hunting, do you think, 
in the lower 48 States?
    Ms. Clark. No, Mr. Chairman. They do not.
    This really is positive in a number of ways. It allows for 
the information or the data that we can gather during the 
subsistence hunts to help us in managing the overall migratory 
bird resource. But we do not expect any--we expect limited to 
no impact on sport hunting in the lower 48, either.
    Senator Hagel. On the issue of subsistence hunting, my 
understanding is that there are different obligations for 
Alaska and Canada. Is that correct?
    Ms. Clark. Well, the Canadian Constitution--let's see if I 
can get this right--there are different--I might have to ask 
for some help on this. But I would say this protocol 
acknowledges the independent subsistence use of the aboriginal 
peoples of northern Canada and the natives of Alaska according 
to the subsistence use in each area.
    Senator Hagel. And that you think is a good, fair way to 
approach it?
    Ms. Clark. Yes, Mr. Chairman. In fact, the negotiating 
team, as one of their over-arching principles, acknowledged the 
fairness to both people.
    Senator Hagel. Thank you.
    I may have some other questions or my colleagues may have, 
Director Clark, on that issue and others in the protocol. We 
may want to send those over for further clarification.
    But unless you have anything you would like to add, again, 
I am grateful for your time. You have helped us and we will 
move this along.
    Ms. Clark. Great. Thank you, Mr. Chairman. I appreciate it.
    Senator Hagel. Ms. Clark, thank you.
    Could I ask now for the next panel to come forward. They 
are Mr. Myron Naneng and Mr. Roger Holmes.
    Mr. Naneng, welcome.
    Mr. Naneng. Thank you.
    Senator Hagel. Excuse me. I see your name plates have been 
turned around.
    Mr. Naneng. Oh, you were calling him first, then?
    Senator Hagel. Well, I don't know if that offends either of 
you, but we will give you the ``Mr. Chairman'' nameplate.
    Now, Mr. Naneng, would you like to begin, and thank you.

   STATEMENT OF MYRON NANENG, SR., PRESIDENT, ASSOCIATION OF 
VILLAGE PRESIDENTS, VICE CHAIR, NATIVE MIGRATORY BIRDS WORKING 
                    GROUP, ANCHORAGE, ALASKA

    Mr. Naneng. Yes. Mr. Chairman and members of the committee, 
on behalf of thousands of Alaska natives, I sincerely thank you 
for the invitation to address you today.
    My name is Myron Naneng, Sr. I am a Vice Chairman of the 
Alaska Native Migratory Bird Working Group, a member of the 
U.S. negotiating team for the 1995 Protocol with Canada, and I 
am a Yup-ik Eskimo and a subsistence hunter. My Yup-ik name is 
``Che-sak,'' which, literally translated by some of my 
relatives, is ``the bug.''
    I want to begin by expressing our deepest appreciation for 
the leadership and commitment of Mollie Beattie, demonstrated 
as head of the U.S. negotiating team. She showed an uncommon 
understanding of the nutritional and cultural aspects of the 
native subsistence way of life, and her actions showed her 
confidence in native people as responsible caretakers and 
managers of their subsistence resources. We wish that she had 
been here today to share the hearing with us.
    I also want to express our appreciation to Senators 
Murkowski and Stevens, Lieutenant Governor Ulmer, and others in 
her administration, and Roger Holmes and others in the U.S. 
negotiating team. It was rewarding to be a part of the 
consensus that the team achieved because of their commitment to 
conservation and to meeting the customary and traditional 
subsistence needs of the indigenous inhabitants of Alaska. This 
consensus is expressed in the Protocol and the Protocol 
Interpretation of the U.S. delegation.
    I want to emphasize three things in my testimony. Number 
one is the vital protections that the Canadian and Mexican 
Protocols provide for the Alaska native way of life.
    Number two is Alaska natives' strong commitment to the 
conservation of migratory birds.
    Number three is the essential role that the management 
bodies created in the Canadian Protocol play in achieving the 
goals of the Migratory Bird Conventions.
    There is no way to separate native customary and 
traditional harvest of migratory birds from who we are as a 
culture and as a people. The return of the migratory birds in 
the spring is greeted with the same kind of joy and 
anticipation as the return of warm, daylight, and open water.
    The migratory bird harvest is an essential part of our 
customary harvest patterns, developed through thousands of 
years of living with resources in Alaska. The migratory bird 
harvest provides fresh meat in the spring, when few other 
wildlife species are available. We also harvest migratory birds 
at other times of the year when they are available and when 
necessary.
    Their eggs, harvested consistent with our responsibility 
for conservation, are an important part of our diet. The 
harvest is shared with our families and tribes, and there are 
important cultural values in the customary and traditional 
harvest practices.
    I am also a drummer of our dance group, and the customary 
and traditional migratory bird harvest is a theme of many of 
our songs and dances that have been passed on from generation 
to generation. In fact, some of the traditional dance fans that 
are often used come from the migratory birds.
    The Protocol recognizes the importance of migratory birds 
as an essential part of our way of life by providing for both 
nutritional needs and other essential needs and by protecting 
customary and traditional uses.
    Native Alaskans are vitally concerned with the conservation 
of migratory birds. Laws and Protocols do nothing to protect 
anyone's use of birds unless there are healthy populations. We 
have demonstrated our commitment to conservation through, among 
other things, the work of the Waterfowl Conservation Committee 
with the U.S. Fish and Wildlife Service to protect four species 
of migratory birds and their nesting habitats in Western 
Alaska. I have worked closely with the committee as its 
chairman, and all agree that, since the work began in 1984, 
meaningful and successful conservation measures have been taken 
through the cooperative efforts of these tribal leaders, Alaska 
native subsistence hunters, and the State, as well as the 
Service.
    The local traditional knowledge of native subsistence users 
has played a major role in these successful conservation 
efforts.
    Time and experience have repeatedly demonstrated that 
meaningful implementation of subsistence harvest and 
conservation can only be achieved through a management system 
that incorporates an effective role for the indigenous users of 
the resource. The Canadian Protocol explicitly provides for the 
establishment of management bodies that will provide native 
users, through their village councils, an equal place at the 
management table and full participation and involvement on all 
management issues. Alaska natives view this element of the 
Protocol as essential and look forward to being responsible and 
cooperative management partners.
    With that, I would like to thank you, Mr. Chairman. I would 
be happy to answer any questions.
    Senator Hagel. Mr. Naneng, thank you. Thank you for coming 
to testify. We are grateful. It is important that we focus on 
your concerns. These are historical concerns and it is 
important that we not lose that heritage and that rich culture. 
So we are grateful that you would take the time and make the 
effort to come and share with us your thoughts.
    Mr. Naneng. Thank you. Mr. Chairman, I hope that my 
testimony will be incorporated as part of the record.
    Senator Hagel. Yes, sir, it will be in the record as will 
all of the testimony of all of our witnesses. Thank you. Mr. 
Holmes.

   STATEMENT OF ROGER HOLMES, DIRECTOR, DIVISION OF FISH AND 
      WILDLIFE, MINNESOTA DEPARTMENT OF NATIONAL RESOURCES

    Mr. Holmes. Thank you very much, Mr. Chairman. I, too, 
appreciate the opportunity to testify.
    First of all, my name is Roger Holmes. I am the Director of 
the Division of Fish and Wildlife for the State of Minnesota. I 
also chair the Migratory Wildlife Committee for the 
International Association of Fish and Wildlife Agencies. I also 
chaired the Ad Hoc Committee on the Protocol. It was a 
committee of 26 people from Canada and the U.S. from inside and 
outside of the Canadian and U.S. Governments and State and 
provincial governments that held 7 meetings over a 2 year 
period between Washington, DC and Anchorage Alaska and 5 other 
places in between. Those meetings were open to the public. We 
had lots of discussion and put together the original and the 
first, I guess you would call them, working papers that started 
all of this.
    As I said, I am here representing the International 
Association. This association was founded in 1902 and, as far 
as its government membership is concerned, it involves the fish 
and wildlife agencies of all 50 States.
    I would also point out that, while the primary authority 
and responsibility for managing migratory wildlife resides in 
the Federal Government, residual authority and responsibility 
continue to reside with the several States. Therefore, State 
agency members have a governmental interest in the subject of 
today's hearing.
    The International Association supports the pending 
amendments to the 1916 convention because they are intended, 
for the first time, to provide for regulation of the 
traditional spring harvest of migratory birds, principally 
migratory waterfowl, and their eggs in remote areas of Alaska 
and in Canada.
    As a member of the U.S. team negotiating the 1995 Protocol, 
I have been closely involved in the process of formulating the 
pending amendments. Spring harvest in remote areas of Alaska 
and Canada has occurred for centuries. But since 1918, it has 
taken place in violation of the terms of the 1916 Convention, 
which prescribes a closed season between March 10 and September 
1, which you have already heard about.
    It is during the closed season that migratory waterfowl are 
present in these latitudes, presenting an untenable situation 
for northern native people who rely upon this resource for 
fresh protein. It is time for this inequitable situation to be 
addressed so that the spring harvest in these areas will no 
longer occur outside the terms of the convention and outside 
the regulatory framework established by the Secretary of 
Interior.
    The 1995 Protocol amendments will bring this harvest within 
the regime established by the parties to the convention and 
permit wildlife managers, in cooperation with native 
communities in Alaska, to regulate this international resource.
    In Canada, it is our understanding that aboriginal groups 
are prepared to negotiate migratory bird management agreements 
with the Federal and provincial governments. The committee will 
remember that in 1979, a protocol with a similar purpose was 
signed by representatives of the United States and Canada and 
transmitted to this committee for consideration in the 
following year.
    The 1979 protocol failed to make clear how or even if 
subsistence hunting would be regulated and led to calls for 
assurance that the migratory waterfowl resource would not 
suffer a loss of reproductive potential by legitimizing hunting 
during the breeding season or in general be depleted were the 
protocol ratified.
    Indeed, this International Association resolved formally 
both in 1979 and again in 1987 to oppose advice and consent to 
ratification unless and until necessary assurances were 
provided.
    Mr. Chairman, our current support is predicated on the 
authoritative executive branch representations set forth in the 
May 20, 1996 letter of submittal of the Secretary of State 
concerning both the meaning of the 1995 protocol and the manner 
in which the executive branch intends to implement an amended 
convention. Those representations include the exchange of notes 
at signing and the following five critical points.
    One: nothing in the protocol is intended to establish in 
the United States any entitlement or right in any individual to 
harvest migratory birds.
    Two: nothing in the protocol is intended to establish in 
the United States a preference in favor of any individual or 
group of users.
    Three: subsistence harvest seasons in the United States 
shall be established by the Secretary so as to provide for the 
preservation and maintenance of stocks of migratory birds.
    Four: it is not the intention of the parties to the 
protocol to authorize the taking of migratory birds or the 
collection of eggs or nests for commercial purposes except in 
limited circumstances, specified in the letter of submitted 
dated May 20, 1996, of the Secretary of State.
    Five: any restrictions in the United States on harvest 
levels of migratory birds necessary for conservation shall be 
shared equitably between users in Alaska and users in other 
States taking into account nutritional needs.
    Accordingly, the International Association urges this 
committee to recommend advice and consent to ratification of 
the 1995 protocol only on the basis of the executive branch 
assurances contained in the transmittal documents.
    There is an additional item to which we wish to draw the 
committee's attention. The two governments affirm that it is 
not the intent of the 1995 protocol to cause significant 
increases in the take of species of migratory birds relative to 
their continental population sizes. The Fish and Wildlife 
Service has concluded that the Alaska spring and summer 
subsistence harvest of migratory birds would not increase 
significantly if legalization occurs.
    Nevertheless, neither the U.S. Fish and Wildlife Service 
nor the Canadian Wildlife Service has accurate information on 
the existing subsistence harvest. We agree with the Fish and 
Wildlife Service that it would be important to determine as 
accurately as possible current levels of subsistence harvest. 
Without a better handle on the size of the spring-summer 
harvest in the territories of both parties, assurances that 
harvest increases will not be significant will not be 
determinable.
    We believe monitoring of the spring-summer harvest is 
essential and urge this committee in its report to underscore 
the necessity of adequate funding requests for this purpose by 
the administration and favorable consideration of such requests 
by the appropriate committees of Congress.
    In conclusion, Mr. Chairman, considering the executive 
branch assurances that are provided, we believe the proposed 
amendments will enhance the abilities of the parties to 
conserve and manage the migratory bird resources of North 
America.
    That concludes my testimony. I would be pleased to try to 
answer any questions.
    [The prepared statement of Mr. Holmes follows:]
                   Prepared Statement of Roger Holmes
    Thank you for the opportunity to share with the Committee the views 
of the International Association of Fish and Wildlife Agencies on the 
Protocol Amending the 1916 Convention for the protection of Migratory 
Birds, signed at Washington on December 14, 1995. I am Roger Holmes, 
Director of the Minnesota Division of Fish and Wildlife, and Chairman 
of the Migratory Wildlife Committee of the International Association of 
Fish and Wildlife Agencies.
    The International Association, founded in 1902, is a quasi-
governmental organization of public agencies charged with protection 
and management of North America's fish and wildlife resources. The 
Association, whose government members include the fish and wildlife 
agencies of all fifty States, has been a key instrumentality for nearly 
a century in promoting sound resource management and strengthening 
federal, state and provincial cooperation in this area. It was a 1946 
proposal of this Association, for example, which led to creation by the 
U.S. Fish and Wildlife Service the following year of Flyway Councils in 
each of the four well-defined routes in the seasonal travels of 
migratory birds.
    While primary authority and responsibility for protection and 
management of migratory birds reside in the federal government, 
residual authority and responsibility continue to reside in the several 
States, Carey v. South Dakota, 250 U.S. 118 (1919), and thus the state 
agency members of the International Association have a governmental 
interest in the subject of today's hearing.
    The International Association supports the pending amendments to 
the 1916 Convention because they are intended, for the first time, to 
provide for regulation of the traditional spring harvest of migratory 
birds, principally migratory waterfowl, and their eggs in remote areas 
of Alaska and Canada.
    As a member of the U.S. team negotiating the 1995 Protocol, I have 
been closely involved in the process of formulating the pending 
amendments. Spring harvest in remote areas of Alaska and Canada has 
occurred for centuries but since 1918 has taken place in violation of 
the terms of the 1916 Convention which prescribes a closed season 
between March 10 and September 1 of each year. It is during the closed 
season that migratory waterfowl are present in these latitudes and 
precisely during the open season when they have migrated south, 
presenting an untenable situation for northern native people who rely 
upon this resource for nutritional sustenance. It is time this 
inequitable situation be addressed so that the spring harvest in these 
areas will no longer occur outside the terms of the Convention and 
outside the regulatory framework established by the Secretary of the 
Interior.
    The 1995 Protocol amendments will bring this harvest within the 
regime established by the parties to the Convention and permit wildlife 
managers, in cooperation with native communities in Alaska, to regulate 
this international resource. In Canada, it is our understanding that 
aboriginal groups are prepared to negotiate migratory bird management 
agreements with the federal and provincial governments.
    The Committee will remember that, in 1979, a protocol with a 
similar purpose was signed by representatives of the United States and 
Canada and transmitted to this Committee the following year for 
consideration. At that time questions were raised by the International 
Association and by national conservation organizations as to the 
meaning and significance of the changes to the 1916 Migratory Bird 
Convention, an agreement many of us view as one of the most, if not the 
most, successful international conservation agreements ever undertaken.
    The 1979 Protocol failed to make clear how or even if subsistence 
hunting would be regulated and led to calls for assurance that the 
migratory waterfowl resource would not suffer a loss of reproductive 
potential by legitimizing hunting during the breeding season or in 
general be depleted were the Protocol ratified. Indeed, the 
International Association resolved formally, both in 1979 and again in 
1987, to oppose advice and consent to ratification unless and until 
necessary assurances were provided. We note that the Protocol signed on 
January 30, 1979, was formally withdrawn by the President in his 
transmittal letter to the Senate dated August 2, 1996.
    Mr. Chairman, the International Association supports ratification 
of the revised Protocol as, we understand, do many of the principal 
conservation organizations, waterfowl hunting organizations, and 
wildlife managers. Our support is predicated on the authoritative 
Executive Branch representations, set forth in the May 20, 1996, letter 
of submittal of the Secretary of State, concerning both the meaning of 
the 1995 Protocol and the manner in which the Executive Branch intends 
to implement an amended Convention. Those representations include the 
exchange of notes at signing making explicit the understanding of the 
governments of the United States and of Canada that all of the 
activities newly allowed by Article 11 of the Protocol are to be 
conducted in accord with the conservation principles also articulated 
in Article 11. Executive Branch representations also include these 
critical items:

   Nothing in the Protocol is intended to establish in the 
        United States any entitlement or right in any individual to 
        harvest migratory birds or to collect their eggs except as 
        permitted by regulation of the Secretary of the Interior,
   Nothing in the Protocol is intended to establish in the 
        United States a preference in favor of any individual or group 
        of users over any other individual or group of users;
   Subsistence harvest seasons in the United States shall be 
        established by the Secretary so as to provide for the 
        preservation and maintenance of stocks of migratory birds;
   It is not the intention of the parties to the Protocol to 
        authorize the taking of migratory birds or the collection of 
        eggs or nests for commercial purposes except in the limited 
        circumstances specified in the letter of submittal dated May 
        20, 1996, of the Secretary of State; and
   Any restrictions in the United States on harvest levels of 
        migratory birds necessary for conservation shall be shared 
        equitably between users in Alaska and users in other States 
        taking into account nutritional needs.

    The absence of such assurances caused the International Association 
to oppose the 1979 Protocol and our support of the 1995 Protocol, in 
turn, is predicated on the fact that these assurances now exist. 
Accordingly, the International Association urges this Committee to 
recommend advice and consent to ratification of the 1995 Protocol only 
on the basis of the Executive Branch assurances contained in the 
transmittal documents. The Protocol Agreement with Mexico, signed at 
Mexico City on May 5, 1997, essentially is in aid of the agreement with 
Canada and the Association also supports that agreement with the 
Executive Branch assurances.
    There is an additional item to which we wish to draw the 
Committee's attention. The two governments affirm in the ``Whereas'' 
provisions that ``it is not the intent of [the 1995] Protocol to cause 
significant increases in the take of species of migratory birds 
relative to their continental population sizes.'' The Fish and Wildlife 
Service has concluded that the Alaska spring and summer subsistence 
harvest of migratory birds ``would not increase significantly if 
legalization occurs.'' Environmental Assessment dated March 7, 1994, at 
31. Nevertheless, neither FWS nor the Canadian Wildlife Service has 
accurate information on the existing subsistence harvest. We agree with 
the FWS assertion in its March 1994 environmental assessment that, if 
the 1916 Convention is amended, ``it would first be important to 
determine as accurately as possible current levels of subsistence 
harvest.'' (p. 33) Without a better handle on the size of the spring/
summer harvest in the territories of both parties, assurances that 
harvest increases will not be significant will not be determinable. We 
believe monitoring of the spring/summer harvest is essential and urge 
this Committee in its report to underscore the necessity of adequate 
funding requests for this purpose by the administration and favorable 
consideration of such requests by the appropriate committees of 
Congress.
    In conclusion, Mr. Chairman, the International Association supports 
ratification of these amendments to the Migratory Bird Convention. With 
the Executive Branch assurances that are provided, we believe the 
proposed amendments will enhance the ability of the parties to conserve 
and manage the migratory bird resource of North America.

    Senator Hagel. To both of you, again, we are grateful. 
Thank you for your efforts.
    As you heard me say to Chairman Murkowski and Lieutenant 
Governor Ulmer, we will move expeditiously. Chairman Helms 
wants to move this through the full committee. I believe the 
next full committee meeting is October 8. We should be able to 
get it through the full committee and then on to the Senate. So 
I would hope that we could finish this before the recess, 
whenever that is, but certainly this year.
    I have no questions. Your testimony will be included in the 
record.
    Thank you very, very much.
    The committee is adjourned.
    [Whereupon, at 3 p.m., the committee adjourned, subject to 
the call of the Chair.]

                                
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