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Exchanges--
Interamerican Dialogue

Cultural Patrimony in Mexico:

Proposal for a New Law to Replace
the 1972 Legislation

Emily McClung de Tapia

As April 1999 came to a close, an initiative to substitute the "Ley Federal de Zonas Monumentos Arqueológicos, Artísticos e Históricos" for the "Ley General de Patrimonial Cultural de la Nación," promoted by Mauricio Fernández Garza, National Action Party (PAN) senator, was presented to the Mexican Senate by the Commission on Cultural Affairs. A series of public forums were held in several cities on October 13­20, 1999, to discuss the content and potential consequences of the proposed law. However, ever since the text first appeared in public, it has undergone scrutiny by diverse sectors of the anthropological community and received serious criticism from all corners. The following comments are largely restricted to the relevance of the proposal for the archaeological community, although it obviously has significant implications for historical and contemporary monuments and artistic achievements.

Although a detailed summary of the 42-page proposal is beyond our scope here, some of the salient features of the initiative are worth mentioning. A complete version of the initiative can be obtained on the information list maintained by Carlos García Mora (email: uandakua@mati.net.mx).

The initiative includes the creation of the Instituto para la Protección del Patrimonio Cultural that would absorb the current Instituto Nacional de Anthropología e Historia (INAH) as well as certain functions of the Instituto Nacional de Bellas Artes (INBA) and Consejo Nacional de Arte y Cultura (Conaculta). However, several references to INAH (for example, Art. 33 and Art. 40) leave its future role unclear.

According to the proposal, this new entity would be integrated by an executive secretary; a council presided over by the secretary of Public Education and comprised further by the secretaries of the Interior, Treasury, Social Development, Environment, Auditor, and Tourism, as well as the attorney general, the president of Conaculta and the executive secretary of the Instituto para la Protección del Patrimonio Cultural; and five recognized specialists representing the scientific and academic communities, designated by the president of the Republic and proposed by the secretary of Public Education. A Technical Commission, presided by the executive secretary of the Instituto, would function as a advisory body.

Another organ to be created under the proposed law would coordinate the interaction of federal, state, and municipal authorities with technical assistance from INAH (Art. 40): the National System of Coordination in Protection, Growth, and Development of National Cultural Patrimony. This organ would be further divided into two subdivisions (Art. 41): the General Council on National Cultural Patrimony, composed of the secretary of Public Education and the state governors, represented by the president of Conaculta in the first instance and by designates in the second; and a Permanent Committee for Protection and Growth of Cultural Patrimony of the Nation, composed of the president of Conaculta, the executive secretary of the Institute and representatives of eight geographical entities, each formed by groups of four neighboring states. The General Council would be responsible for promoting national development through the protection of cultural patrimony, and its functions would include approval of technical norms to guide research, cataloguing, exhibition, preservation, restoration, utilization, reproduction, and storage of patrimony, among others (Art. 43).

A clear implication of the proposal is the virtual disappearance of INAH and, since no specific mention is made of the professional schools it supports, the fate of these centers of learning is left in doubt.

One of the major problems Mexico faces is the protection of archaeological sites and artifacts from damage, looting, and illegal sale, on one hand, and on the other, provision of the necessary financial support to promote scientific research and conservation of monuments and associated archaeological materials. The initiative purports to deal with the risks to cultural patrimony through new sanctions such as fines (ranging from 100 to 1,500 days of minimum wages) and prison terms (from 1 to 10 years), depending upon the gravity of the offense (Arts. 67-71). However, certain individuals would be permitted to privately enjoy the ownership of archaeological remains, based upon their "education, customs, and behavior" (Art. 68).

In the Mexican anthropological community certain elements of the proposal have generated a notable consensus, particularly the opinion that the initiative appears to promote private collections and consequently, looting, and the illegal or pseudo-legal traffic of archaeological remains. It clearly gives priority to political and economic interests at the state and municipal levels rather than to cultural and scientific objectives at the national level. It glosses over potential input from qualified, certified professionals in fields such as archaeology, architecture, restoration, and other related areas, leaving most decisions in the hands of politicians and their designates. Finally, it provides no clear measures for the rescue and protection of archaeological zones. Other criticisms include an ambiguous definition of cultural patrimony; significant omissions as to the future of the INAH-related schools and INAH employees, and the role of scientific research in archaeology, among others; and foremost, a marked tendency to promote privatization (referred to as "concessions" in the text) of national cultural patrimony while completely disregarding the potential participation of the general community in its preservation.

Recently, some members of the senate Cultural Commission, including senators from both the Democratic Revolution Party (PRD) and the Revolutionary Institutional Party (PRI), pointed out flaws in the initiative, such as the inadequate judicial structure and the lack of consensus necessary for its passage during the current legislative session (September 26, 1999, La iniciativa de Ley del Patrimonio Cultural, en agonía, Proceso, 1195, p. 64).

The initiative must be presented to the senate commissions of Culture and Cultural Patrimony, and a discussion held to determine modifications in or dismissal of the proposal. Then, it will be presented to the entire senate followed by additional discussion, and finally, presented to the House of Deputies where it will undergo a similar evaluation process. Unfortunately, this is a particularly bad moment for such critical legislation to be pending in the legislature. As the primary election for the PRI's presidential candidates draws near and other significant political events capture both the public's and their "representatives'" attention, many anthropologists fear that meaningful discussion and consideration of alternative positions risk being sidelined, resulting in the measure being passed without adequate consideration and, especially, consultation.

Most Mexican archaeologists have dedicated their careers to the scientific study of archaeological remains as a means of gaining insight into past societies and their contributions to Mexican and global cultural heritage. On the other hand, political and economic interests in archaeology tend to focus on the preservation of cultural patrimony in direct proportion to its capacity for generating economic resources. In spite of the myriad problems faced by INAH, with an operating budget that is unable to keep pace with its mandate, the general archaeological community favors a significant modification of the 1972 law to update its coverage to provide adequate measures that would allow enforcement of its provisions rather than a new proposal (Letter to the H. Congreso de la Union, May 18, 1999, Colegio Mexicano de Antropólogos, A.C.; Interview with G. García Cantú, Reforma May 22, 1999; Letter to Lic. Teresa Franco, Director, INAH, June 2, 1999, Especialidad de Arqueología, Instituto de Investigaciones Antropológicas, UNAM; Los antropólogos, en la polémica, Proceso, 1195, September 26, 1999, p. 66). ·

Emily McClung de Tapia, associate editor for the Dialogues column, is at the Instituto de Investigaciones Antropológicas, UNAM, Mexico D.F.

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