that “involves, relates to, or references . . . gaming, or an activity that is unlawful under any State or Federal law.” 17 C.F.R. § 40.11(a)(1). In promulgating § 40.11(a)(1), the CFTC therefore made the categorical determination that event contracts involving these specific activities are contrary to the public interest. 4 Indeed, when announcing its rule, the CFTC clarified: [I]ts prohibition of . . . “gaming” contracts is consistent with Congress’s intent [for the CEA’s Special Rule] to “prevent gambling through the futures markets” and to “protect the public interest from gaming and other events contracts.” Adopting Release, 76 Fed. Reg. 44,786 (July 27, 2011) (citations omitted). Nothing in any of this language preempts, amends, diminishes, or even conflicts with IGRA. If anything, this statutory and regulatory language reinforces the longstanding view that IGRA’s comprehensive structure dominates the regulation of gaming on Indian lands. Kalshi’s sports betting operation rests entirely on its assertion that it alone has the preemptive authority to self-certify that its gaming activities do not violate the CEA, CFTC regulations, IGRA, or other federal statutes governing gaming such as the UIGEA and the Wire Act. 5 This is incorrect. It is inconceivable that Congress would have granted private entities (like Kalshi) the unlimited authority to offer mobile sports betting throughout the United States—including on Indian lands—without explicitly stating as much, especially in the face of existing, comprehensive statutes and regulations governing gaming on Indian lands. It is axiomatic that “Congress . . . does not alter the fundamental details of a regulatory scheme in
4 See Statement of Commissioner Caroline D. Pham (Aug. 26, 2022), available at https://www.cftc.gov/PressRoom/SpeechesTestimony/phamstatement082622 (“In promulgating [§] 40.11(a)(1) pursuant to Section [7a-2](c)(5)(C), the [CFTC] determined that an event contract that ‘involves, relates to, or references’ . . . gaming, or illegal activity is prohibited because it is contrary to the public interest.”). 5 31 U.S.C. § 5361 et seq. ; 18 U.S.C. § 1084.
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