Case: 25-7516, 01/23/2026, DktEntry: 33.1, Page 61 of 110
Kalshi cites (Br. 44) Big Lagoon Rancheria v. California , 789 F.3d 947,
953-54 (9th Cir. 2015) (en banc), but that case is distinguishable. There,
California refused to negotiate with an Indian Tribe about its plans to build
a casino on lands that the Bureau of Indian Affairs (BIA) had taken into
trust for the Tribe. Id . at 951. California argued that the BIA lacked au-
thority to take the land into trust and had incorrectly designated the Tribe.
Id . at 952. But Congress authorizes only the BIA to designate Tribes and
to take land into trust for Tribes. 25 U.S.C. §§ 5108, 5131; see Haaland v.
Brackeen , 599 U.S. 255, 273 (2023). California thus was challenging deci-
sions that only the BIA could make. Here, the CEA does not grant the CFTC
sole authority to determine whether a contract is a swap, future, or option,
and the CEA has not made that determination with respect to Kalshi’s con-
tracts.
More fundamentally, Kalshi’s argument (Br. 44) misunderstands
State Defendants’ interest in this litigation. State Defendants are not seek-
ing to enforce the CEA or police what products are listed on DCMs—they
seek only to enforce Nevada gaming law. Kalshi’s argument (Br. 42) that
the CEA does not allow state authorities to sue DCMs for violations of the
CEA, see 7 U.S.C. § 13a-2(1), thus misses the mark. Kalshi put at issue
whether its contracts are swaps by claiming preemption on that basis, see
2-ER-108 (¶ 35); it cannot turn around and require State Defendants to sue
the CFTC to prove that its contracts are not swaps.
43
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