Tribes take on prediction markets

District Judge Jacqueline Scott Corley denied the preliminary injunction in November. Her reasoning is worth precision because it defines the appeal. She found that secretarial procedures are functionally equivalent to compacts under IGRA, a point favorable to the tribes, but concluded that the relevant provisions did not prohibit Kalshi’s conduct, since the documents address internet games offered by the tribes and are silent about outside companies. She then held that the Unlawful Internet Gambling Enforcement Act governed the disputed transactions, and that statute’s definition of a bet or wager excludes transactions conducted on an entity registered under the Commodity Exchange Act, which placed Kalshi within the exclusion. She further concluded that the Commodity Futures Trading Commission holds exclusive jurisdiction to determine what qualifies as a covered contract.

That chain of reasoning is the industry’s entire defense in compressed form: we are a registered derivatives exchange, the statutes carve us out, and the agency that licenses us decides what we may list.

The Ninth Circuit, this month

Appellate panels do not decide from the bench and questions are not rulings, but the tenor of argument was materially different from the district court’s disposition.

The panel pressed Kalshi’s counsel on why the contracts are not simply bets. One judge stated directly that they sound like a bet subject to Native American gambling laws. Another suggested it would not be unreasonable to exclude tribes from federal oversight in this area, which, if it became the holding, would carve a sovereignty exception into precisely the preemption argument on which the sector’s American operations rest.

Counsel for the tribes pressed the point that ordinances cannot be separated from the compacts and secretarial procedures, because those agreements require gaming to comply with the tribes’ regulatory frameworks, and that IGRA would offer little protection if an outside company could conduct unauthorized gaming on tribal lands while escaping suit merely because its name appears in none of the governing documents.

The panel gave no timeline. The underlying district court case is stayed pending the decision. And the hearing followed a separate Ninth Circuit argument earlier this year in Nevada’s enforcement attempt against Kalshi, Robinhood, and Crypto.com, where the same court was similarly skeptical of the preemption arguments, which means one appellate circuit is now weighing two distinct challenges to the same legal foundation.

Why this is not the state fight

The distinction matters and is easy to miss, because both sets of cases involve sports contracts and the same defendants.

The state cases ask whether federal registration under the Commodity Exchange Act preempts state gaming law, a classic federalism question about whether Congress displaced state police powers. The tribal cases ask something different: whether one federal statute, the Commodity Exchange Act as amended in 2010, silently displaced another federal statute, the Indian Gaming Regulatory Act of 1988, along with the compacts negotiated under it. That is not federal-versus-state. It is federal-versus-federal, with a sovereign third party whose rights derive from treaties, statutes, and a body of law that courts have historically read protectively.

The argument that gives this its force was put sharply in international gaming law commentary: if the CFTC’s position prevails, then when Congress amended the Commodity Exchange Act in 2010, it silently erased decades of Indian gaming law without a single reference to tribes or to IGRA anywhere in the text. Courts are generally reluctant to find implied repeals, and especially reluctant where Indian law is concerned, given the canon that ambiguities are construed in favor of tribes. Kalshi’s counter is that its position requires no repeal at all, because the exchange is simply not conducting gaming under IGRA’s definitions, and that the tribes’ theory would make any nationally available financial product a per-jurisdiction licensing question the moment a user carried a phone across a boundary.

There is a third federal thread running in parallel: the Sixth Circuit is separately considering whether these contracts qualify as swaps under the Commodity Exchange Act, a definitional question with implications for everything above. Three circuits, three theories, one product.

What is actually at stake

For the tribes, the stakes are the bargain that Indian gaming rests on, and the arithmetic behind it is why the language has hardened.

Under IGRA, tribes negotiate compacts with states that grant exclusivity over certain gaming in exchange for regulatory compliance and, in many states, substantial revenue sharing. That exclusivity is the consideration; it is what tribes purchased with decades of negotiation and what funds government services, healthcare, education, and infrastructure across Indian Country. If federally licensed exchanges may offer functionally identical sports wagering nationwide, including to users on reservations, without negotiating a compact or complying with IGRA, then the exclusivity tribes bargained for has been rendered worthless without anyone renegotiating anything. The Indian Gaming Association’s chairman put the functional argument plainly: open the app and you see the same bets offered in every legal sportsbook. A Brookings analysis by a legal scholar described the development as an existential threat to American Indian gaming.

The response has been organized, not rhetorical. Tribal organizations and more than sixty federally recognized tribes have filed amicus briefs across the relevant cases. At this year’s Indian Gaming Association convention, leaders described a parallel path of litigation and federal lobbying, pressing Congress to require the CFTC to enforce its own rules and arguing that the agency has permitted gambling to operate under a financial label. And California’s broader tribal coalition has reaffirmed plans for a 2028 ballot initiative for tribally led sports betting, framed partly as a response to prediction markets operating in what they characterize as a regulatory gray area.

For the industry, the stakes are equally direct. Sports contracts generate the majority of retail prediction market volume, a Massachusetts court found nearly seventy percent of Kalshi’s volume tied to sports when it moved to block the app there in January, and an adverse tribal ruling would not merely add a compliance burden. It would introduce geographic carve-outs into a product whose entire architecture assumes nationwide uniformity under a single federal license, in a country with hundreds of reservations.

The honest reading

Both sides hold a genuinely strong argument, which is why this is being litigated in three circuits instead of settled.

The tribes’ best case is not the functional similarity to sportsbooks, appealing as that framing is to a panel. It is the implied-repeal problem: a 2010 amendment to a commodities statute, containing no mention of tribes, should not be read to nullify a 1988 statute and the compacts negotiated under it, particularly given the interpretive canon favoring tribes. That is a structural argument about how Congress legislates, and it does not depend on characterizing event contracts as gambling at all.

Kalshi’s best case is not the sportsbook comparison’s inadequacy either. It is Judge Corley’s chain: UIGEA expressly excludes transactions on CEA-registered entities from its definition of a bet, the compacts and procedures govern what tribes may offer rather than what third parties may, and Congress assigned the CFTC exclusive authority over what counts as a covered contract. Each link is textual, and textual arguments travel well in appellate courts.

What neither side can claim is that the current arrangement was designed. Nobody in 1988 or 2010 contemplated a federally licensed exchange offering yes-or-no contracts on football games to a phone sitting on a reservation, and the courts are being asked to allocate an authority that Congress never consciously assigned. That is the honest description of every question in this sector, and the tribal case is simply the version where the party with the strongest historical claim to the disputed ground was not at the table when the statute that may override it was written.

The exclusion that decides the case

One statutory provision is doing more work in this litigation than any argument either side has made, and it deserves its own examination because it was written for an entirely different purpose.

The Unlawful Internet Gambling Enforcement Act, passed in 2006 to attack offshore online poker and sports betting by cutting off payment processing, defines a bet or wager and then carves out exceptions. One of those exceptions covers transactions conducted on an entity registered under the Commodity Exchange Act. The purpose in 2006 was mundane: Congress did not want a statute aimed at internet gambling to accidentally sweep in the legitimate commodity futures markets, where contracts on future prices are a normal financial activity, and so it excluded regulated derivatives venues from the definition. Nobody drafting that exclusion contemplated a CFTC-registered exchange offering contracts on football games to retail customers, because no such thing existed or was seriously proposed.

Twenty years later, that carve-out is the load-bearing element of the district court’s ruling in the tribal case, and functionally the strongest single sentence in the industry’s legal position. If transactions on a CEA-registered entity are not bets or wagers under federal internet gambling law, then a federally licensed exchange listing sports contracts is not conducting internet gambling as Congress defined it, whatever it resembles in practice.

The reasoning is textually sound and it is also a textbook example of a provision applied far outside the circumstances that produced it.

Which is why the tribes’ implied-repeal argument and this exclusion are really the same fight from opposite ends. The industry says two federal statutes, read together, plainly exclude it from gambling law. The tribes say those statutes were never written with prediction markets or Indian gaming in mind, and that reading an incidental carve-out to nullify a negotiated sovereign framework attributes to Congress an intention it never formed. Appellate courts resolve exactly this kind of dispute by choosing between text and purpose, and the Ninth Circuit’s questions this month suggested at least some appetite for the second. That choice, more than any characterization of what an event contract feels like to a user, is what the panel is actually deciding.

What to watch

The Ninth Circuit’s opinion. No timeline was given, and the panel’s questions ran against the exchange. A reversal returns the case to Judge Corley for reconsideration and immediately raises the possibility of geographic carve-outs; an affirmance largely closes the tribal theory and strengthens preemption across the board.

The Sixth Circuit’s swaps question. Whether these contracts are swaps under the Commodity Exchange Act is upstream of everything, and a ruling there could reshape both the tribal and state cases before either concludes.

Congressional lobbying. Tribal organizations are pressing Congress directly, and tribal interests have historically been effective when compact rights are threatened. Any legislative language addressing tribal lands specifically, whether in the pending sports-contract bill or elsewhere, would be the fastest route to resolution.

The 2028 California initiative. A tribally led sports betting measure would change the competitive landscape in the largest state regardless of how the litigation ends, and its drafting will reveal how tribes intend to coexist with, or exclude, federally licensed event contracts.

One last observation for readers following the broader sector. The three legal challenges now running against prediction markets, the state preemption cases, the tribal sovereignty cases, and the Sixth Circuit’s swaps definition question, look like three versions of one dispute and are actually three separate bets on how a single ambiguity gets resolved. The ambiguity is that Congress created a category, event contracts on a federally licensed exchange, without deciding whether that category displaces the gambling law built around the same activity by states and tribes over decades. Each set of plaintiffs has picked the doctrine most favorable to their position, and the industry’s defense is identical in all three: we are a registered derivatives venue, the statutes say what they say, and the Commission decides what we may list.

The consequence is that the sector’s legal exposure is not additive but structural. A loss in any one forum does not merely add a compliance requirement; it proves that the federal registration defense has a limit, and every other plaintiff then argues for their own version of that limit. Which is why the industry’s compliance build, its data partnerships, and its political spending are all running in parallel rather than sequentially, and why the coming months matter more than the volume charts suggest. The category is not waiting for one verdict. It is waiting to learn whether its foundational legal claim survives contact with three different sovereigns at once.

Disclaimer: This article is for information and educational purposes only and does not constitute legal, financial, or investment advice. It describes pending litigation whose outcome is unknown, and characterizations of oral argument reflect contemporaneous reporting rather than rulings. Nothing here predicts any judicial result. Always do your own research. Information is accurate as of July 27, 2026.

Frequently Asked Questions