Case: 2:25-cv-01165-SDM-CMV Doc #: 34-1 Filed: 11/14/25 Page: 15 of 22 PAGEID #: 533
CFTC’s jurisdiction over such DOJ prosecutions. See 7 U.S.C. § 16(e)(1)(A) (“Nothing in this chapter shall supersede or preempt … criminal prosecution under any Federal criminal statute.”). Further, federal courts have established that later-enacted statutes of general applicability cannot repeal earlier-enacted legislation that is specifically designed to advance the United States’ special relationship with Indians, without a clear statement from Congress. See, e.g. , Morton v. Mancari , 417 U.S. 535, 550 (1974); Swinomish Indian Tribal Cmty. v. BNSF Ry. Co. , 951 F.3d 1142 (9th Cir. 2020); Shoshone-Bannock Tribes of Fort Hall Rsrv. v. U.S. Dep't of the Interior , 153 F.4th 748 (9th Cir. 2025). These cases further establish that when there is ambiguity as to whether a later-enacted statute of general applicability repeals an earlier-enacted statute applied specifically for the benefit of tribes, the question of repeal “must be resolved by the Indian canons of construction”—i.e., in tribes’ favor. See Shoshone-Bannock , 153 F.4th at 765–766 (holding the Federal Land Policy and Management Act did not impliedly repeal a 1900 law specifically protecting a tribe’s usufructuary rights to ceded lands). Here, Congress passed legislation—IGRA—specifically to protect tribes’ ability to regulate class III gaming on Indian lands. 9 Congress did not explicitly reference IGRA nor class III gaming on Indian lands when it amended the CEA in 2010; nor did Congress expressly exempt wagering on the outcome of sporting events from existing federal laws regulating sports betting. Rather, by the plain language of the CEA, it applies to the commodities trading market (focusing on the risk, discovery, and dissemination of commodity pricing information), not Indian gaming. See 7 U.S.C. § 5(a)–(b). Indeed, Congress went so far as to enact the Special Rule, which shows a clear Congressional intent to disallow any “gaming” activity on DCMs at
9 In its regulations, the NIGC defined “class III gaming” to include “ sports betting .” 25 C.F.R. § 502.4(c) (first published at 57 Fed. Reg. 12392 (April 9, 1992)) (emphasis added).
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