Arkansas Amendment 104 and the Cherokee Nation's Pope County Casino Loss

The Cherokee Nation's pursuit of a casino license in Pope County, Arkansas produced one of the clearest recent tests of a question tribal enterprises increasingly face: what legal protection does a tribal business have when it operates as a state licensee off Indian lands? The answer, delivered by a federal district court in August 2025, was blunt. Very little that a state's voters cannot take away.

Arkansas voters approved Amendment 100 in 2018, authorizing four casinos statewide — two at existing racing facilities in Crittenden and Garland counties, and two new licenses in Jefferson and Pope counties. The Pope County license spent years in litigation before the Arkansas Racing Commission awarded it to Cherokee Nation Entertainment on June 27, 2024, with the final permit issued the following month. CNE planned Legends Resort and Casino: a roughly $300 million development with a 50,000-square-foot gaming floor, about 1,200 slot machines, a 200-room hotel and a 15,000-square-foot multipurpose venue.

How Issue 2 Reversed the Award

On November 5, 2024, Arkansas voters approved Issue 2 — enacted as Amendment 104 — with roughly 56 percent of about 1.1 million votes cast. The measure reduced the number of casino licenses created by Amendment 100 from four to three, repealed the state's authority to issue a Pope County license, and revoked the license already awarded. It also imposed a new requirement that any future casino license be approved by voters in a countywide election.

Pope County itself voted against the measure by a similar margin — approximately 56 percent opposed — a detail that became central to the legal challenge. The county whose license was being revoked did not want it revoked.

On November 8, 2024, Cherokee Nation Businesses, Cherokee Nation Entertainment and a Pope County resident, Jennifer McGill, filed suit in the U.S. District Court for the Eastern District of Arkansas. The complaint argued that Amendment 104 violated the due process, contract, equal protection and takings clauses of the U.S. Constitution, and that the ballot language had been misleading. The plaintiffs sought an injunction to keep the amendment from taking effect. The court denied it, and dismissed the State of Arkansas and the Arkansas Racing Commission as defendants on sovereign immunity grounds, leaving Governor Sarah Huckabee Sanders and seven racing commissioners in the case.

"Cherokee Nation Entertainment is firmly committed to protecting its constitutional rights, defending its lawfully issued casino license, and safeguarding the substantial investments it made in good faith," CNE attorney Bart Calhoun said following the referendum.

Those investments were not small. By the time the case reached judgment, the tribe had acquired roughly 325 acres and spent more than $60 million on site development, hiring and vendor contracts. On August 28, 2025, U.S. District Judge D. Price Marshall Jr. dismissed every claim in a 32-page decision, upholding the amendment against each constitutional theory the plaintiffs advanced.

The Sovereignty Asymmetry

The outcome is worth understanding precisely, because it is easy to misread as a tribal sovereignty defeat. It was not, in the technical sense. Legends Resort was never an Indian Gaming Regulatory Act project. The site was not Indian lands, the license was not a tribal-state compact, and the National Indian Gaming Commission had no role. Cherokee Nation Entertainment was competing as a commercial applicant under Arkansas law, on the same terms as any other corporate bidder.

That was a deliberate strategic choice, and for a well-capitalized tribal enterprise it is often a sound one. Commercial licensure avoids the fee-to-trust queue, the Section 20 analysis, the gubernatorial concurrence problem and the multi-year federal review that off-reservation IGRA projects endure. Our Legal Guide lays out how sharply those two pathways diverge.

But the trade is real. Inside IGRA, a tribe's gaming operation rests on federal law, a compact, and a body of sovereign immunity doctrine that constrains what states can unilaterally do. Outside it, a tribal enterprise holds a state license — a revocable privilege under state law, subject to the same constitutional amendment process available to any state's electorate. Sovereign immunity worked in Arkansas's favor in this case, shielding the state and its racing commission from suit. It offered the tribal plaintiffs nothing, because they were the ones suing.

What Other Tribal Enterprises Take From It

The Pope County result does not argue against commercial licensure. Tribal operators hold state licenses in several jurisdictions and run those properties well; the model has been a meaningful diversification channel for enterprises that have saturated their compact-protected home markets. Our analysis of tribal enterprises in commercial gaming beyond Indian lands covers the strategic case in full.

What the case does argue for is sequencing discipline. Cherokee Nation Entertainment spent $60 million against a license that remained politically contestable — in a state where the citizen-initiative process makes constitutional amendment comparatively accessible, and where a competing gaming interest had both motive and means to fund a statewide campaign. The capital was deployed before that risk had been retired. In a compact context, the analogous risk is largely retired at signature and federal approval; in a commercial context, it may persist through the next general election and beyond.

The broader lesson for tribal enterprise boards is that political risk in commercial markets is not a residual to be priced as a small percentage of project cost. It is a live variable that can zero out an entire investment, and it is not meaningfully hedged by the sovereign status of the investor. For background on the enterprise itself and its Oklahoma operations, see our Cherokee Nation Entertainment profile and the Oklahoma state hub.