Cherokee Nation lawsuit seeks to block enactment of Issue 2 amendment

A zombie issue in Arkansas is the Pope County casino license fight between Cherokee Nation Entertainment (CNE) and the Choctaw Nation. On Friday (Nov. 8), legal action was taken to block a voter-approved amendment that prevents a casino from being built in the county.

Almost 56% of Arkansas voters on Nov. 5 approved Issue 2, a constitutional amendment – Amendment 104 – that would require local voter approval in a countywide election for any future casino licenses while also repealing the state’s authority to issue a casino license in Pope County and revoking the existing Pope County casino license.

In 2018, voters statewide approved licenses for casino operations in Crittenden, Garland, Jefferson and Pope counties. Three casinos are now operating under those licenses at Oaklawn Racing & Gaming in Hot Springs, Southland Casino Hotel in West Memphis, and Saracen Casino Resort in Pine Bluff.

The Arkansas Racing Commission (ARC) on June 27 issued the casino license in Pope County to CNE. The action followed several legal moves since 2018 between CNE and the Choctaw Nation that have, through numerous legal actions and ARC decision changes, stalled casino construction in the county.

Local Voters in Charge, financed largely by the Choctaw Nation, were behind Amendment 104 which nullified a Pope County casino license approved by the voters in 2018. The amendment required future casinos to first to be approved by a majority of voters in a special election in the counties where they would be located.

Through the Little Rock-based law firm of McDaniel Wolff, CNE submitted three filings in the U.S. Eastern District Court of Arkansas to block enactment of Amendment 104. Because the amendment is set to be implemented on Nov. 13, the filings ask for a temporary restraining order and injunction to provide time to litigate several alleged harms to CNE, including violation of procedural due process, violation of the Equal Protection Clause, and violation of the Takings Clause.

“The Amendment’s intent and consequence is to revoke CNE’s casino license. The Amendment revokes the license without compensation, without public purpose and without any notice. This constitutes a violation of the Takings Clause of the United States Constitution and CNB/CNE’s substantive due process rights,” noted an excerpt from the complaint.

CNE attorney Bart Calhoun said the legal action was necessary to protect the organization’s rights.

“Amendment 104 undermines foundational legal rights and stands to interfere with several binding contractual obligations. We are initiating litigation in federal court on multiple grounds and pursuing a temporary restraining order to preserve our client’s rights and investments throughout the legal proceedings,” Calhoun noted in a statement.

Hans Stiritz, with Local Voters in Charge, said the process was legal and the vote will stand.

“This legal action to attempt to bypass the voice of Arkansas voters is not unexpected. But we are fully confident in the process that brought Issue 2 to the ballot. Arkansas voters have spoken clearly on Issue 2 and we expect it to stand,” he noted in a statement.