From the opinion:
We are “reluctant to read into ambiguous statutory text” a “radical or fundamental change” to that longstanding statutory scheme. Congress did not take a wrecking ball to all sports gambling regulations built up over decades by federal, state, and tribal governments when it amended the CEA to add the definition of swap we are considering today.
Additional Resource
Prediction Market Litigation Tracker by Mick Bransfield
I’m adding two valuable memos by Monte Mills and Martin Nie to the Roadless Rule resources posted yesterday. Mills is the Charles I. Stone Professor of Law and Director of the Native American Law Center at the University of Washington, where his work focuses on Federal Indian law, Tribal sovereignty, and natural resources. Nie is Professor of Natural Resources Policy and Director of the Bolle Center for People & Forests at the University of Montana, with particular expertise in federal public lands governance.
Their September 2025 memo provides historical and legal background on Tribal interests in the original Roadless Rule and later Idaho, Colorado, and Tongass rulemakings. Their new August 28, 2026 memo focuses on USDA’s proposed rule and Draft EIS, including what they describe as a “shell game” of shifting protection from a national rule to forest- and project-level processes while some of those protections are themselves being weakened. They also report that 108 of 126 current forest plans, about 86%, provide no substantive recognition or meaningful protection of Tribal rights or interests.
These pair well with the ILPC papers that I created and posted yesterday, which approach the rulemaking from a different direction. One analyzes what Tribes actually placed in the 2025 administrative record and USDA’s response to those concerns, while the other addresses strategic considerations for Tribal Nations before the September 21 comment deadline, including relevant legal doctrines and other hooks for building and preserving the administrative record.
Attachments
From the WI DNR Letter of August 27:
Thank you for the updates provided on the afternoon of Wednesday, August 26, 2026, regarding the liquified natural gas spill near Saxon, Wisconsin. As noted during the call, the agency is deeply concerned about this spill and immensely frustrated by other recent noncompliance events and has several outstanding questions of Enbridge and would appreciate written responses as expeditiously as possible. The department requests that you halt work on the pipeline re-routing project until this event on the existing pipeline is sufficiently resolved and Enbridge has demonstrated that measures are in place to prevent future spill events related to all pipeline work.
* * * *
Tribal Outreach
Wisconsin Tribal Nations and the Great Lakes Indian Fish and Wildlife Commission (GLIFWC) have raised several questions and concerns with the department regarding the liquefied gas spill near Saxon, as well as previous compliance-related incidents associated with Enbridge projects over the past several weeks and months. Please provide written responses to the following questions as expeditiously as possible:
- What is Enbridge’s communication and outreach strategy for engaging directly with Wisconsin Tribal Nations and GLIFWC regarding the current incident and other recent compliance-related events?
- When does Enbridge anticipate implementing this communication strategy?
- How does Enbridge intend to maintain regular and timely communication with Wisconsin Tribal Nations and GLIFWC as response and remediation activities continue?
Additional Resource
Collision causes pipeline leak near Bad River Reservation, shuts down Line 5, Amelia Shafer for ICT, August 26, 2026
Here.
On August 20, 2026, USDA published a proposed rule to rescind the 2001 Roadless Area Conservation Rule, which has restricted road construction, road reconstruction, and timber harvesting across approximately 44.7 million acres of National Forest System lands for the past quarter century. The proposal would replace the existing rule’s nationwide layer of protection and return more decisions about roadless areas to individual forest plans and project-level review.
Alongside the proposed rule, USDA released a 333-page Draft Environmental Impact Statement, a cost-benefit and regulatory-flexibility analysis, and a Tribal Summary Impact Statement. (Links to these documents are below.)
Comments on the proposed rule are due September 21, 2026. The docket is FS-2025-0001.
This isn’t the first time Tribes have weighed in. USDA’s August 2025 Notice of Intent opened a scoping comment period that drew more than 220,000 comments, with about 99% opposed to the rescission. Based on the ILPC’s analysis, the comments included 42 written submissions from 38 distinct Tribal governments and organizations. Scoping comments, however, only shape what an agency studies, and a court asked to review the eventual final rule will look at the record as it stands when the agency acts. As a result, the current 30-day comment period is fundamentally different from the one in 2025, since it’s the last opportunity to place Tribe-specific evidence, legal argument, and disagreement with USDA’s reasoning into the administrative record before the rule is finalized.
The ILPC is sharing four documents to help Tribes and their staff and counsel use that opportunity
a. The first document is a list of tribal comments submitted during the fall 2025 window and found by the ILPC in response to the Notice of Intent. The document includes links to each tribe or tribal organization’s comments.
b. The second document, The Tribal Administrative Record on the Roadless Rule, is an ILPC independent empirical review of the 38 distinct Tribal comments filed in 2025. Rather than starting from USDA’s own categories, the ILPC coded the submissions and measured how often fourteen recurring themes appear, from near-universal concerns about ecological resources (94.7%), and cultural and religious interests (94.7%), to concerns raised by roughly half of commenters about consultation adequacy and enhanced Tribal governmental authority beyond ordinary consultation. It then compares that record against USDA’s 2026 Draft EIS line by line. Our finding: USDA’s Draft EIS rhetorically recognizes Tribal sovereignty, treaty rights, and trust obligations. It also concludes that full rescission, the alternative it proposes, would create the greatest potential for adverse effects on Tribal rights and interests of any alternative it studied. The gap this record exposes isn’t whether USDA heard Tribes. It’s what the agency did about what it heard.
b. The third document, Strategic Considerations for Tribal Nations in the 2001 Roadless Rule Rescission Comment Period, moves to strategy. It walks through the administrative law tools a comment filed now can use, including arbitrary and capricious review, record preservation and issue exhaustion doctrine, NEPA’s alternatives requirement, NHPA Section 106, and treaty rights claims where they apply, and explains why the strongest comments this round will do more than restate 2025 positions. The most impactful comments submitted now will name an impact, identify USDA’s specific response in the documents it published in the docket on August 20, and explain concretely why that response does or doesn’t hold up. The memo also addresses the administration’s simultaneous move to weaken the protections of NHPA Section 106 through a proposed rule that is expected to be published soon. If NHPA 106 protections are administratively weakened, Tribes will face a multiplication of interventions as decision-making is returned to the land management planning process at the individual national forest level, on top of diminished leverage under a weakened 106 regime.
The strategic considerations memo also flags a separate problem ILPC ran into directly. USDA’s Tribal Summary Impact Statement rests heavily on 29 completed (and 34 scheduled) government-to-government consultations (out of 64 Tribal requests for consultation), but the underlying consultation records aren’t in the public docket, and ILPC couldn’t locate any posted log of them. After an August 28 letter to the Forest Service’s Office of Tribal Relations went unanswered, ILPC filed a formal FOIA request the same day. Because of FOIA’s ordinary processing timeline, that request may not be resolved before the comment period closes. As it stands, Tribes and the public are being asked to evaluate USDA’s account of what it heard in consultation without being able to see the records that account is based on. That timing problem is itself worth putting directly into a comment.
Below is a full set of links to the docket, including the proposed rule, the complete Draft EIS, the Tribal Summary Impact Statement, the economic analysis, and the ILPC-generated documents referred to above.
Additional Resources
Link to the Docket for the 2001 Roadless Rule Rescission
List of Tribes with Comments Submitted Fall 2025 (with links) UPDATE: pdfs of all Tribal comments are included in Vol. III of the EIS.
ILPC Memo: The Tribal Administrative Record on the Roadless Rule
ILPC Graphic: Chart of Tribal Comments Grouped by Theme
ILPC Memo: Strategic Considerations for Tribal Nations in the 2001 Roadless Rule Rescission Comment Period
ILPC Email to FS OTR for Consultation Records
ILPC FOIA Request to FS OTR for Consultation Records
NCAI Resolution Opposing the Legislative Repeal of the 2001 Roadless Area Conservation Rule and Supporting its Retention
Roadless Rule Tribal Hub : “The Tribal Hub is an informational platform created to support Tribal leaders, staff, and community members in responding to the proposed rescission of the 2001 Roadless Rule. Our goal is to ensure that Tribes have timely access to resources, information, and tools to protect sovereignty, treaty and reserved rights, and cultural lifeways throughout this federal rulemaking process.”
In March, Matthew posted the Minnesota Supreme Court’s decision rejecting an equal protection challenge to ICWA for lack of standing. The foster parents have now asked SCOTUS to review that decision. On August 26, the Minnesota AG, Red Lake Nation, the children’s guardian ad litem, the mother, and Faribault-Martin County Human Services filed their brief in opposition.
The petitioners ask the Court to decide the equal protection question that the Court didn’t reach in Brackeen, arguing that ICWA and the Minnesota Indian Family Preservation Act impose race-based placement preferences. They also ask the Court to review a First Amendment claim that denying intervention because the foster parents raised a constitutional challenge was itself unconstitutional.
The brief in opposition identifies substantial obstacles to review that make the case a poor vehicle for resolving the equal protection issue left unresolved in Brackeen while also separately arguing that the equal protection claim should fail on the merits since ICWA/MIPFA use political rather than racial classifications under Morton v. Mancari. It also defends the intervention denial as constitutional.
Tribes aren’t alone in warning that the Commodity Futures Trading Commission is exceeding its authority with its proposed rule. Criticism of the rule is also raised in comments submitted by former Senator Chris Dodd, co-author of Dodd-Frank, the legislation that amended the Commodities Exchange Act provisions at the heart of CFTC’s proposed rule; Timothy Massad, a former CFTC chair; 44 state attorneys general; and leading gaming and derivatives interests.
This is the third and final post in a series (first post; second post) on the CFTC’s proposed rule governing prediction market “event contracts.”
Former Sen. Chris Dodd, co-author of Dodd-Frank, says Congress did not authorize this
Former Senator Christopher Dodd submitted a comment stating:
The proposed regulatory amendments contradict the language and intent of the Dodd-Frank Act and promote public policies opposing what Congress clearly intended.
These amendments could well endanger consumers and promote speculation. These proposed amendments undermine the traditional police powers of states and also functionally amend the Indian Gaming Regulatory Act (IGRA), which could diminish tribal sovereignty.
A former CFTC chair says the agency has “lost its way”
Former CFTC Chair Timothy Massad opened his comment with an unusually direct statement:
“The Commodity Futures Trading Commission has lost its way . . . . Although I have not submitted comments on any rule proposal since leaving the agency, I feel it is important to do so here because the agency has lost sight of its mission and the limits of its own authority.”
Forty-four state attorneys general raise objections
A bipartisan coalition of 44 state attorneys general, led by Ohio Attorney General Andy Wilson, likewise argues:
“The CFTC in the Proposed Rule goes well beyond its statutory authority. . . . it violates both the major-questions doctrine and the federalism canon . . . . [and] clashes with the CEA’s plain text, structure, and purpose.”
Comments from the American Gaming Association and CME Group
The American Gaming Association, whose members include commercial and Tribal gaming operators, states in its comments:
The proposed rule concedes that sports event contracts involve gaming, yet creates a permissive framework designed to allow them. That approach conflicts with congressional intent, 15 years of regulatory precedent, state and federal law, and the CFTC’s own regulations. It would also displace state and tribal authority while exposing consumers and sports competitions to wagering activity without comparable licensing, geolocation, responsible gaming, integrity monitoring, or enforcement safeguards.
The CFTC is a financial markets regulator, not a national gaming commission. It lacks both the expertise and resources to replace the more than 8,400 state and tribal regulators who oversee legal gaming today. The Commission should withdraw the proposed revisions to Rule 40.11, enforce the existing prohibition on gaming event contracts, respect tribal sovereignty and states’ rights, and put an end to the unlawful nationwide expansion of sports wagering through prediction markets.
CME Group, one of the world’s largest derivatives market operators, also submitted comments, stating that “the Commission’s authority on this score is ambiguous at best, [and] deferring to Congress would be advisable.”
Each of these comments challenge the CFTC’s authority to create a nationwide market for products that function as sports betting while bypassing the federal, Tribal, and state laws that otherwise govern gaming.
The Oklahoma Indian Gaming Association’s Wins Award for Longest Comment
A final note: OIGA’s comment was the most detailed submission to the CFTC, totaling 50 pages and including 291 footnotes.
This is a follow-up to my earlier post on prediction markets and Indian gaming. A subsequent post on key comments submitted by non-Tribal persons and organizations is available here.
Below is a summary that provides a snapshot of the concerns raised by Tribes in their comments submitted in response to the CFTC’s proposed rule.
Taken together, the comments consistently emphasize that the CFTC is considering a federal workaround that could allow companies to offer nationwide sports betting while bypassing the legal framework Congress created for gaming in Indian country.
Recurring concerns raised in Tribal comments include:
Tribal Submissions
Online prediction markets present one of the most significant threats to Indian gaming and Tribal sovereign interests in decades. Prediction market companies threaten Indian gaming because they’re advancing a legal theory that could allow them to offer a product that functionally operates as sports betting nationwide without complying with the legal regime that Congress created for gaming in Indian country. These markets allow people to bet on almost anything, from sporting events and sports statistics to who will be named the next Pope and whether famous people will say certain words during a speech. One aspect of the story that’s received little attention from major media outlets is the intersection between these markets, Indian gaming, and the Trump family’s financial interests.
The Trump administration’s Commodity Futures Trading Commission (CFTC) is proposing a new rule governing prediction market “event contracts,” including contracts based on sporting events. The proposal would define “gaming” and when an event contract “involves” gaming, while replacing the CFTC’s current strongly prohibitory approach with one under which the agency would make public interest determinations about particular categories of contracts.
The distinction is enormously consequential. Prediction market companies argue that sports event contracts are derivatives subject to federal regulation under the Commodity Exchange Act rather than sports gambling subject to state law or, in Indian country, gaming under IGRA. If successful, the consequences go well beyond which federal agency regulates the new financial products of prediction markets.
As Turtle Talk readers well know, Tribes operate gaming under a system of federal law, Tribal law, Tribal gaming regulation, and for Class III gaming, Tribal-State compacts negotiated pursuant to IGRA. Prediction market companies argue that that they can offer a product that looks nearly identical to sports betting, but outside of the laws governing gaming in Indian country because wagers placed with their companies are “event contracts” governed by the CFTC and its rules.
The major issue presented by this conflict is who has to play by which rules. The CFTC proposed rule would strengthen the prediction market industry’s argument that sports contracts can operate in Indian country without being subject to IGRA. If successful, this would impair Tribal regulatory authority, Tribal-State compact enforcement, gaming compact exclusivity provisions, and gaming revenues that Tribes use to fund their governmental services.
Who Stands to Benefit?
Meanwhile, the Trump family has significant financial ties to prediction markets. Donald Trump Jr. is a strategic adviser to Kalshi and a partner in 1789 Capital, which invested tens of millions of dollars in Polymarket. Trump, Jr. also joined Polymarket as an adviser. The investment potential is profound. Kalshi was valued at $22 billion in May 2026 and was reported to be discussing a new funding round at a valuation as high as $40 billion just one month later. Industry analysts have projected that prediction markets could grow into a $1 trillion per year trading market by 2030. A federal rule strengthening the industry’s ability to offer their contracts nationwide under exclusive CFTC regulation has extraordinarily large commercial stakes.
The New Yorker recently reported on the overlap between Trump family financial interests and the administration’s approach to prediction markets in an article titled “This Is What Trumpian Self-Dealing Looks Like.” None of this alone establishes that the Trump family caused the CFTC to propose this particular rule. But it highlights the stakes of the proposed rule and the question of who stands to benefit from this administration’s policy choices.
The Trump Indian Gaming Historical Context
As TT readers know, Trump has attacked Indian gaming since at least the early 1990s, when his Atlantic City casinos competed with Tribal gaming. In 1993 congressional testimony about implementation of IGRA, Trump complained about Tribal casinos, alleged organized crime problems, and questioned the Indian identity of Tribal people, telling members of Congress that some “don’t look like Indians to me.” This significance of this history goes beyond its blatant racism. In the 1990s, Trump owned casinos that faced competition from Indian gaming, and he responded by attacking Indian gaming’s legitimacy and regulation with attack ads smearing the St. Regis Mohawk, resulting in a $250,000 fine from New York’s state lobbying commission (see the link to the Washington Post’s article, Trump’s Long History of Clashes with Native Americans, in the Additional Resources section below). Now, more than thirty years later, Tribes are responding to a federal regulatory proposal that could profoundly benefit prediction market companies, including companies with Trump family financial ties, by arguing that they offer the functional equivalent of sports betting without being subject to IGRA and Tribal-State gaming compacts.
Indian Country’s Response
Indian country responded to the proposed new CFTC rule by submitting 65 timely comments from Tribes, Tribal gaming regulators, and Tribal organizations opposing or raising significant concerns about the proposal, with more Tribal submissions posted after the deadline. These objections address the proposed rule in light of Tribal sovereignty, IGRA, Tribal-State compacts, the statutory meaning of “gaming,” CFTC’s claimed federal jurisdiction, and the adequacy of tribal consultation. I’ll post more about these comments in the coming days, including what the proposed rule could mean for Indian gaming if it’s adopted, as well as a summary of the legal arguments Tribes made in their submissions.
Importantly, Tribes are also litigating this conflict in federal courts, with cases that Turtle Talk has been following. Tribes are participating in litigation over Kalshi’s sports event contracts in multiple courts, and several tribes have sued directly:
• Ho-Chunk Nation v. Kalshi Inc. (W.D. Wis.) (a federal judge allowed the Tribe’s IGRA claims against Kalshi to proceed in May 2026)
• Blue Lake Rancheria v. Kalshi Inc. (N.D. Cal.) (currently pending before the Ninth Circuit)
• Mescalero Apache Tribe v. Kalshi Inc. (D.N.M.) (complaint filed on May 12, 2026 by Mescalero Apache, Pueblo of Pojoaque, and Sandia Pueblo)
Roughly two dozen additional Tribes and Tribal organizations, including the Indian Gaming Association, California Nations Indian Gaming Association, Arizona Indian Gaming Association, Oklahoma Indian Gaming Association, National Congress of American Indians, Native American Finance Officers Association, San Manuel Gaming and Hospitality Authority, and the United South and Eastern Tribes Sovereignty Protection Fund, have filed amicus briefs in four state-initiated challenges against Kalshi and other prediction market operators: North American Derivatives Exchange (Crypto.com) v. Hendrick (D. Nev.), KalshiEX v. Martin (D. Md.), KalshiEX v. Flaherty (D.N.J.), and Robinhood Markets v. Campbell (D. Mass.).
Finally, the question running through all of this is: after Tribes spent decades building gaming enterprises within the federal framework Congress established with IGRA, can a new generation of prediction market companies enter the same market, call the transactions “event contracts,” and operate under a different and less burdensome set of rules? If the federal government concludes that they can, then we should all question who benefits from that decision and who bears the cost.
Additional Resources
My summary of the Tribal comments submitted in response to the CFTC proposed rule is here, and highlights of non-Tribal comments from former Senator Chris Dodd, 44 State Attorney Generals, the former chair of the CFTC, and others is here.
Trump’s Long History of Clashes with Native Americans, by Shawn Boburg for the Washington Post (July 25, 2016). Access without a paywall is here. This story also reports on New York State’s state lobbying commission imposing a $250,000 fine for Trump’s violation of state lobbying laws in his campaign to smear Indian gaming in New York state through a series of ads depicting the St. Regis Mohawk as violent criminals and drug dealers in an effort to kill Tribal casino plans that would compete with his Atlantic City casino businesses.
Public Law 959, known as the Indian Relocation Act of 1956, was enacted on August 3, 1956. The National Archives has assembled an excellent online guide to BIA urban relocation records, including the original statute, federal relocation promotional materials, field office records, case files, and records from the relocation offices including the Chicago relocation office for folks interested in Great Lakes relocation history.
Additional resources
Native community centers helped preserve culture and connection during urban relocation, Rachel Schuit for Crosswinds, August 3, 2026
The Federal Indian Relocation Programme of the 1950s and the Urbanization of Indian Identity, Donald Fixico, in
RICHARD BESSEL AND CLAUDIA B. HAAKE (eds.), Removing Peoples. Forced Removal in the Modern World (Oxford: Oxford University Press, 2009)
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