145 Tribal Amici Ask Supreme Court to Hear Kalshi Case Now

Wenona Singel

Yesterday, 130 federally recognized Tribes and 15 Tribal organizations filed an amicus brief asking the Supreme Court to grant review in Flaherty v. KalshiEX.

The case comes from the Third Circuit and doesn’t include a Tribal party. The amici acknowledge that “issues with this great an impact on Indian country ought to be decided in cases where Tribes themselves are parties.” But they argue that the Court shouldn’t wait.

New Jersey’s petition gives the Court an opportunity to resolve a conflict among three courts of appeals. The Third Circuit sided with Kalshi, while the Sixth and Ninth Circuits rejected its claim that federal commodities law displaces state gaming regulation. The Ninth Circuit later applied similar reasoning under IGRA in the Tribal-party litigation in Blue Lake Rancheria. In Blue Lake, the Ninth Circuit held that two Tribes were likely to establish that Kalshi’s sports contracts constitute unauthorized class III gaming when entered from their lands.

The brief’s introduction opens with a sharp analogy. “For centuries, prospectors have encroached on Indian lands, stealing gold, minerals, and other vital resources.” Quoting Justice Gorsuch’s dissent in Castro-Huerta, it adds, “Still, it seems old habits die slowly.”

“Today’s prospectors are so-called prediction markets,” the amici write. They argue that Kalshi is entering Indian lands without Tribal authorization, violating IGRA, and competing for revenue that supports Tribal governments.

The brief ends where it began. The Court shouldn’t leave the issue unresolved while prediction markets “plunder Indian resources in a modern-day gold rush.”

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