18 U.S.C. § 1166(d). If “swap” is read to include Kalshi’s sports event contracts, thereby subjecting them to exclusive CFTC jurisdiction, the DOJ’s jurisdiction over such criminal prosecutions will also have been impliedly repealed. However, Congress did not express its “clear and manifest” intent to repeal these key provisions of IGRA. Even viewed in the light most favorable to Kalshi’s position, the definition of “swaps” is ambiguous at best as to whether it includes sports event contracts, which are virtually identical to speculative sports wagers, i.e., sports betting. Ambiguity is not “clear and manifest” intent and an ambiguous statutory provision cannot overcome the strong presumption against repeals by implication. Ambiguity also implicates the Indian canon of statutory construction that would require the ambiguous definition of “swaps” to be interpreted in favor of tribes to maintain IGRA and all its provisions. 11 As further evidence that Congress did not signal its clear and manifest intent to repeal IGRA, the legislative history of the CEA amendments reveals Congress’s concern about event contracts facilitating gambling, and in particular sports betting. Indeed, as mentioned in the above-discussed colloquy between Senators
11 To the extent that IGRA grants the NIGC regulatory authority over gaming on Indian lands, Congress likewise did not express its “clear and manifest” intent to repeal that authority. In fact, Congress expressly reserved it. See 7 U.S.C. § 2(a)(1)(A).
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