Indian gaming

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.”

Resources

Berkeley Law Panel on Prediction Markets, IGRA, and Tribal Sovereignty, Oct. 13, 2026

Matthew L.M. Fletcher

Tribal Amicus Brief in QCX LLC v. Nessel

Matthew L.M. Fletcher

Here:

Tribal Amicus Brief.pdfDownload

D.C. Federal Court Dismisses Challenge to Comanche & Otoe-Missouria Compact Amendments

Matthew L.M. Fletcher

Here are the new materials in Cherokee Nation v. Dept. of the Interior (D.D.C.):

223-1 Plaintiff Nations MSJ.pdfDownload
224 Oklahoma AG Amicus Brief.pdfDownload
226-1 Comanche MSJ.pdfDownload
228 Comanche Response to 228.pdfDownload
229-1 Otoe-Missouria Cross Motion.pdfDownload
230-1 Federal Cross Motion.pdfDownload
233-1 Oklahoma Governor Cross Motion.pdfDownload
239 Plaintiff Nations’ Reply.pdfDownload
244 Federal Reply.pdfDownload
245 Comanche Reply.pdfDownload
246 Otoe-Missouria Reply.pdfDownload
256 DCT Opinion.pdfDownload

Prior post here.

Ninth Circuit Holds Sports Event Contracts Violate IGRA

Matthew L.M. Fletcher

Here is the order in Blue Lake Rancheria v. Kalshi Inc.

Briefs here.

In hindsight, one might want to bet on Michigan in this one.

Ninth Circuit Panel Questions Rule 19 Precedents in Challenge to Native Village of Eklutna Gaming Operations

Matthew L.M. Fletcher

Here is the unpublished decision in Holl v. Avery.

Briefs here.

D.C. Federal Court Rules in Favor of Coquille Trust Land Acquisition

Matthew L.M. Fletcher

Here are the new materials in Cow Creek Band of Umpqua Indians v. Dept. of the Interior (D.D.C.):

67 COLT Amicus Brief.pdfDownload
70 Cow Creek Motion for Judgment on Pleadings.pdfDownload
77 Cow Creek MSJ.pdfDownload
80 Federal Cross-Motion.pdfDownload
82 Coquille Cross-Motion.pdfDownload
84 Cow Creek Reply.pdfDownload
88 Federal Reply.pdfDownload
89 Coquille Reply.pdfDownload
94 DCT Order.pdfDownload

Prior post here.

Ninth Circuit Rules in Favor of State/Tribal Regulation of Prediction Markets

Matthew L.M. Fletcher

Here is the opinion in KalshiEX LLC v. Hendrick.

Briefs:

Opening Brief.pdfDownload
Answer Brief.pdfDownload
States Amicus Brief.pdfDownload
Tribal Amicus Brief.pdfDownload
Reply.pdfDownload

Ninth Circuit holds that Kalshi unlikely to succeed on claim that Commodities Exchange Act displaces state and tribal gaming laws

Wenona Singel

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

The CFTC’s Prediction Market Rule Has United an Unlikely Coalition Against It

Wenona Singel

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.

Chris Dodd CFTC commentDownload

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.”

Timothy Massad CFTC commentDownload

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.”

44 State AGs comment on CFTC proposed ruleDownload

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.