Being a private company does not absolve Kalshi from being required to adhere to tribal law on tribal land, four New Mexico tribes argued in a brief filed last Friday in their quest to keep the prediction market from offering sports event contracts on their reservations.
The tribes — the Mescalero Apache Tribe, Pueblo of Isleta, Pueblo of Pojoaque, and Pueblo of Sandia — were supporting their motion for a preliminary injunction and responding to Kalshi’s motion to dismiss and subsequent support of that in a case before the U.S. District Court for the District of New Mexico.
The case is one of more than 20 in which a state, a single tribe, or a group of tribes is trying to have sports event contracts banned from prediction markets. On Sept. 2, the state of New Jersey became the first to escalate its case, filing a writ of certiorari with the U.S. Supreme Court in the hopes the court will take on the issue.
As the lawsuit continues, New Mexico has found itself in the middle of a different fight that landed it on Kalshi — President Donald Trump late last week posted on his Truth Social that he wants to rename the state “New America.” Kalshi has a market with the question “When will Trump rename something else?” featuring a map of New Mexico with its name crossed out.
Kalshi violating IGRA, lawyers write
New Mexico’s tribes in May filed the original complaint, which followed similar arguments by a group of tribes in California and the Ho-Chunk Nation in Wisconsin. The California case is currently awaiting an opinion in the Ninth Circuit Court of Appeals, and the Ho-Chunk case is set for trial beginning May 24, 2027, in the U.S. District Court for the District of Western Wisconsin. Indian Country in New Mexico does not currently offer online sports betting, but some tribes have been offering in-person sports betting since October 2019.
Tribal lawyers reiterated that they believe that Kalshi is violating the Indian Gaming Regulatory Act and is not adhering to the law of sovereign nations on sovereign land. They also pushed back on Kalshi’s claim that it would disrupt the public interest if the platform or any of its markets were banned.
The tribes say that protecting their sovereignty outweighs Kalshi’s arguments, and that an injunction would enforce multiple federal, state and tribal laws — including IGRA, the Dodd-Frank Act, the compacts, and tribal law. The tribes also pointed out that Kalshi allows trades for those 18 and over, while the minimum age for sports betting in New Mexico is 21. The lower age requirement, the tribes say, is a public health issue.
Tribes: We waited on Kalshi
In its brief opposing the injunction, Kalshi argued that the tribes waited too long to file their lawsuit and that they did not meet the threshold to establish “irreparable harm” if Kalshi is allowed to continue to operate. The tribes responded by saying that they filed more than a year after Kalshi began offering sports event contracts because they needed the time to gather, find counsel, establish the validity of a claim, and serve Kalshi. They also blame the delay, in part, on their own “professional courtesy” in “agree[ing] to a briefing schedule to accommodate Kalshi’s request for staggered, consolidated briefing and more time to move to dismiss.”
With regard to “irreparable harm,” the tribes say they cannot put a price tag on sovereignty, but allowing Kalshi to continue to operate prevents them from protecting “governmental operations and interests.”
In their initial complaint, the tribes asked that Kalshi geofence out their lands. Kalshi replied that the cost of geofencing is too high and that it would conflict with its mandate for “impartial access,” potentially putting its license in jeopardy. But the tribes again wrote that Kalshi’s geofencing concerns are based on “rampant, unfounded conjecture,” and that Kalshi is already geofencing in three states.
Following state and federal court decisions in Michigan, Nevada, and Washington, Kalshi is required to use a geofence to keep its sports markets from being available in those states.
The brief is the last filing required by the court before it can rule on the preliminary injunction request.
