Case 1:25-cv-08846-AT Document 60-1 Filed 12/03/25 Page 20 of 31
(2018) (citing United States v. Fausto , 484 U.S. 439, 452, 453 (1988)). Congress’s intent to repeal must be “clear and manifest.” Posadas v. Nat’l City Bank of N.Y. , 296 U.S. 497, 503 (1936). The Indian canons of construction 8 also require courts to resolve statutory ambiguities in favor of tribes. Bryan v. Itasca Cnty. , 426 U.S. 373, 392 (1976); New York v. Mountain Tobacco Co. , 942 F.3d 536, 548 (2d Cir. 2019) (“[S]tatutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.” (quoting Montana v. Blackfeet Tribe of Indians , 471 U.S. 759, 766 (1985))). Here, Congress did not express the requisite intent for implied repeal. If the Court accepts Kalshi’s position that its sports-event contracts—which constitute sports betting and class III gaming under IGRA—are swaps subject to the CFTC’s exclusive jurisdiction, then it must also accept the underlying assumption that Congress intended to upend the entire federal framework for Indian gaming and repeal key provisions of IGRA. 9 See, e.g. , 25 U.S.C. § 2710(d)(1). Additionally, IGRA’s criminal provisions provide the United States Department of Justice (“DOJ”) with “exclusive jurisdiction” over criminal prosecutions of applicable gambling laws in Indian country, unless a tribe agrees to transfer jurisdiction to the state. 18 U.S.C. § 1166(d). Under Kalshi’s theory, the CEA likewise impliedly repealed DOJ’s jurisdiction over such criminal prosecutions (which it did not) because it is impossible for the CFTC to exercise exclusive jurisdiction over sports-event contracts while the DOJ exercises its exclusive 8 “[C]ourts ‘have developed canons of construction that treaties and other federal action should when possible be read as protecting Indian rights and in a manner favorable to Indians.’” Hagen v. Utah , 510 U.S. 399, 442 n.1 (1994) (Blackmun, J., dissenting) (quoting Felix Cohen, Handbook of Federal Indian Law 221 (1982 ed.)). 9 In addition to IGRA, Kalshi’s sports-event contracts violate other federal laws, including the Wire Act, 18 U.S.C. § 1084. See Martin , 793 F.Supp.3d at 683 (holding that Kalshi’s proposed interpretation of the CEA “would necessarily entail at least a partial implied repeal of the IGRA and the Wire Act”).
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