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 Chapter 5: Land Tenure Issues Minimize

As established in the chapter on defining the boundaries for archaeological zones, one of the elements which must appear in a site's technical file before it can be considered is a detailed study of land tenure in the affected area, a necessity for planning a strategy for its conversion to federal property. Until now the matter usually has been addressed by a study drawn from official sources (SRA, INGEI, SEDESOL) or by a superficial field survey. The official sources can reflect boundary lines which satisfy the formal requirement of the files, yet in no way capture the complexity of different tenure systems and what they imply for the land, something which can only be understood through historical analysis and direct field observation.

Recently INAH has had to face two critical cases with respect to land tenure. The first took place in Mitla in 1994 with the planned purchase of three plots which clearly invaded the protected space of the Arroyo Group, a purchase intended to free this space of the physical and visual intrusion. To this end during the 1994 season long-sought funds for this purchase (the first time in the history of archaeological work at Mitla that funds had been made available for purchasing land) finally became available, and there was some degree of understanding with the owners to finalize the transaction (INAH 1993, technical file of the Mitla Project, in the Archive of the Archaeological Section). Nevertheless, when the moment to complete the transaction arrived it proved necessary to cancel it, as among other reasons on reviewing the relevant documents it turned out that the properties which the occupants claimed as private property in fact were communal lands and therefore ineligible for private sale. Given the circumstances, and the legal incapacity of INAH to carry out the purchases, the entity providing the funding (in this case the World Bank through the Oaxaca state government) decided to withdraw financing from the purchase.

The other, even more recent, example comes from the archaeological zone of Palenque, Chiapas. Here, in 1993, INAH built on private property a federal building (the Crafts Center) within the area considered part of the immediate surrounding of the archaeological zone. Legal staff of INAH reviewed the tenure status of the plot and apparently assumed that as the new structure was federal the land beneath it automatically acquired the same status. But the legal owner filed suit to retain the property, and on June 15, 1995, the Mexican Supreme Court ruled against INAH, requiring it to return the land to its owner, new building included, or otherwise pay a purchase price of between three and four million pesos (Proceso 1996: No. 1006:60). These examples show quite clearly the important role tenure types play in the context of INAH operations to safeguard the arqueological heritage of Mexico.

By way of general background it is important to note that in Mexico there exist four different forms of land tenure: private, federal, ejido, and communal. These types are not mutually exclusive, and all four may exist in a given community, or even a small portion of it.

Private Property is that owned by a private owner (individual or corporate) and which is legally available via commercial transactions with other prospective owners. Federal Property are those areas owned by the national government, through purchase or condemnation, generally areas whose resources are considered of national interest by law, where there are natural or cultural elements of public importance (oil, minerals, forests, beaches, water, and archaeologicial zones), or of public benefit, such as airports, highways, railroad tracks, or parks. Both of these forms of land tenure have their counterparts in other countries.

This is not true of ejido and communal lands, as these are differentiated from other tenure systems by the fact that they are in communal ownership and may not be disposed of, or at least originally it was not possible to sell them in whole or part. Such lands are controlled in a collective fashion, either by members of the community or the ejido, and members decide the organization, use, and distribution of, or in certain cases, withdrawal or disposition of, the property.

The ejido is a tract of land intended for agricultural or forest use by its members, and is a practical expression of the principle of a social right to land which sparked the Mexican Revolution of 1910 (Varley 1985: 1). The original goal was to foster economically viable self-sufficient communities, generally by providing land for cultivation. This implied, above all, an emphasis on collective benefits for all the members of the ejido, with a weight on access and use, not on the formation of private property. Land used by one member of the ejido, or ejiditario, but which has been abandoned for some reason, will be transferred to another member of the ejido with use rights, assuring in this fashion continuity in the system (Federal Agrarian Reform Law, Article 51).

The creation of the ejido system was the most important accomplishment of the Mexican Revolution. It abolished the latifundios, the landholding system during the Porfirian period at the end of the nineteenth century when more than 90 percent of the land in the country became concentrated in the hands of a small number of property owners, while 95 percent of rural families were landless (Varley 1989: 125).The existence of ejidos draws its legal legitimacy from Article 27 of the Mexican Constitution, and from the Federal Agrarian Reform Law. The Secretary of Agrarian Reform (SRA) is the federal institution with the legal responsibility to distribute lands to ejidos, to resolve disputes among them, and to oversee internal management. Given the magnitude and complexity of the ejido system as the focus of academic study there is an enormous bibliography reflecting legal, historical, or anthropological scholarship. Examples include Varley 1989; Stephen 1994; Murphy 1994; Craig 1993; Cymet 1994; and Sanderson 1984, as well as the extended research activities emerging from the Ejido Reform Research Project of the University of California or similar programs. In this section our focus will be on those aspects of ejido structure and governance where the tenure system interacts with the needs and requirements of heritage protection in the form of archaeological zones.

Unlike the ejido system, where one must be a formally enrolled member of the ejido in order to gain access to and use of ejido lands, communal lands belong to the entire community and may be used by anyone the community recognizes. And communal lands do not have an external supervising entity, such as the Secretary of Agrarian Reform, but are under the control of the communities themselves, usually through a community lands committee. These commitees may allocate plots for farming or home construction, set and oversee rules for the exploitation of communal lands resources, and decide on ways in which to use income from communal resources. The communal lands system is strongest in southern Mexico, where it traces its antecedents to the pre-Columbian land base of the indigenous population. The communal lands committees are selected by community assembles separate from municipal authorities, and in some communities the committees' control over important resources or opportunities make them more influential in community life than the local governments are.

The Federal Law on Archaeological, Artistic, and Historic Monuments anticipates the protection of archaeological and historical monuments via a formal presidential proclamation (Federal Law, Chapter IV, article 37). These national monuments would be subject to federal jurisdiction, and in the specific case of archaeological monuments would be treated as if they are federal property, as established in the same law: "archaeological monuments and artifacts are property of the nation, and may not be sold or disposed of" (Federal Law, Chapter III, article 27). This means that as sites are considered under federal jurisdiction they have legal protection no matter what the tenure system.

Although it is understood that a presidential proclamation must be based on an INAH technical file which demonstrates conclusively the historical importance of the site in question, issues related to land tenure and use, and possible solutions in cases of possible conflicts, in practice it is the cultural importance and the physical boundaries which are taken into account in boundary-setting and subsequent proclamation. In essence the conflicts which might emerge due to the dissatisfaction of private property owners, ejidatarios, or individuals with communal land rights are considered routine matters for INAH to resolve. Nevertheless the agency lacks the legal and technical capacity to settle conflicts. At present the volume and complexity of conflicts occasioned by preservation efforts simply outstrips INAH's ability to protect sites whether or not they have been established by presidential proclamation.