Nobody wants their property stolen, yet that is exactly what occurs to many Native Americans. Using Westernized legal frameworks and assumptions to govern property rights, Indian culture has historically been taken, or at least borrowed, without any ramifications or due process of law. Usually, property rights theory rests on the concept of specificity where people know precisely what they own, what they can do with it, and what others are forbidden from doing. Foundational to this idea is that property has boundaries that laws protect. However, this is not always the case when Indian intangible assets are considered. For instance, how does property rights theory accommodate spiritual meaning or tribal culture associated with Indian artifacts? Our interests in addressing this question and the broader question of how intangible assets are managed (or not) form the basis of our manuscript published in the Journal of Management Studies, where we reconsider property rights theory from a different perspective.
Intangible Assets that Challenge Current Property Rights Theory
Key to our discussion is that intangible assets include expressions of Indian name, image, and likeness (NIL) found in tribal names, sacred words, stories, design motifs, songs, dances, beadwork, headdresses, language phrases, and team mascot concepts. These intangible assets create a specificity problem for current property rights theory. Because many Indigenous communities understand ownership and stewardship differently from conventional Western property-rights models, this can create a problem. Tangible property owned by tribes has been the basis of on-going U.S. conflict regarding what constitutes Indian land. Changing the lens to intangible assets and the issue gets even more contentious and complex. For example, the Hopi Nation’s Katsinam masks were auctioned off in Paris in 2015 creating much angst over the Hopi’s sovereignty to protect Hopi assets both tangible and intangible (i.e., tangible in the physical mask and intangible in transcendent purpose of the mask). The irony of the Hopi Nation losing control over the Katsinam mask was that the mask is used to ward off the advances of outsiders on their land.
When Indian NIL is used in sports, control of culture, brand, mascots, and imagery becomes even more problematic since many have been appropriated and Westernized since back in the 1870s (e.g., Boston Braves). Complicating non-Indian viewpoints on the use of Indian NIL is that some tribes appreciate these mascots and some do not (e.g., Florida State Seminoles). Exerting control of sports Indian NIL, thus, becomes a selective and obscure challenge when Native American and Westernized views of property rights collide.
What’s in our Paper
The interesting aspect of Indian assets is that everything changed in the late 1960s. Prior to that time, we discuss how Native American land was dispossessed from them. The passage of the Indian Civil Rights Act in 1968 provided more legal footing for protection of tangible assets like land. Unfortunately, intangible assets with their lack of specificity were not protected as well from the property rights lens. Our data shows how native NIL used by Westernized sports teams has led to a continuing and uneven dialogue of what is fair, legal, and appropriate. We use tribal nations as a basis to propose revisions to property rights theory to incorporate cases when multiple actors, unclear boundaries, and diverse meaning are present when deciding how to use an intangible asset.
We introduce the concept of institutional bricolage as a mechanism that explains this process. We challenge the assumption that asset ownership is straightforward and argue that property rights deliberations do not collapse under these conditions but instead intensify because there are more avenues to resolution possible. We provide two examples to illustrate this point via the contested and public discussion of the use of the John Two Guns White Calf image on the Washington R-skin helmet and the Seminole Nation’s permission to use their NIL at Floridia State University.
Complicating this discussion is boundary ambiguity that accompanies the use of Native American NIL in sports. For instance, the Kansas City Chiefs, a National Football League team, was named for the mayor (a white man who went by the moniker of “chief”) of Kansas City when the team was formed in the early-1960s. Yet, the team looks and feels like it is connected to some tribal nation, but it is not. IKEA faces similar issues like this in China when they have to inform customers that they are not an American firm even though their brand clearly shows Swedish colors.
Our paper extends property rights theory to accommodate situations where governance includes property that is collective, spiritual, and inalienable to communities and peoples not specifically identified as owners. While we do not call for the elimination of property rights theory per se, we do suggest that non-Westernized views of property be accounted for in the calculation of who owns and benefits from property, especially intangible assets. Further, although Native American intangible assets provide the setting for our study, the underlying governance problem is increasingly common wherever organizations encounter assets whose ownership, boundaries, or meanings are contested.
Why these Findings are Important
Our findings are important for widening property rights theory to accommodate how intangible assets are governed in an age when digital media distorts who owns an image on the internet. For management scholars of strategy, organizational theory, business ethics, and stakeholder governance, the paper raises questions about how organizations govern assets when ownership is not easily assigned to a single actor. Our framework may be particularly useful by demonstrating how property rights become more complicated when multiple parties can make legitimate claims, asset boundaries are unclear, and meanings differ across communities.
These findings also have implications for policymakers and regulators. Intellectual property, name-image-and-likeness (NIL) rights, digital content, and other intangible assets increasingly cross legal and cultural boundaries. Existing rules are often optimized to ownership that can be clearly identified, but many contemporary disputes involve collective identities, inherited meanings, or assets that communities regard as shared and significant, rather than individually owned. Our research suggests that policymakers may need to consider governance approaches that recognize different conceptions of ownership rather than relying exclusively on conventional Western assumptions about property.
Finally, this research matters for organizations. Consumer brands, sports franchises, universities, media companies, museums, digital platforms, and others routinely use names, symbols, stories, designs, images, and cultural references that carry meanings extending far beyond their legal owners. In such situations, simply asking “do we have the legal right to use this?” may be insufficient. Organizations may also need to question who else has a legitimate claim to the asset, how is meaning conferred, and who should participate in decisions about its use. Our framework, therefore, provides a way for managers to anticipate ethical, reputational, and stakeholder conflicts before they arise.
