A federal court judge has rejected the requests by two federally-recognized tribes to intervene in a lawsuit brought by KG Urban Enterprises, a developer that wants to build a New Bedford commercial casino.

Judge Nathaniel Gorton, in a 22-page decision filed today, rejected both motions to intervene saying that the state can adequately protect the interests of the Wampanoag Tribe of Gay Head (Aquinnah) and that the Mashpee Wampanoag Tribe’s interests are already protected by the state, as well as federal Indian gaming law.

KG Urban filed the lawsuit on the day the state Expanded Gaming Act was signed into law in 2011. The company objected to a provision of the law that granted federally-recognized tribes a window of exclusivity in Southeastern Massachusetts, known as Region C in the legislation. KG Urban called it a “race-based, set aside” that violated the U.S. Constitution.

The Massachusetts Gaming Commission began accepting applications for commercial casinos in the region this week.

“When the constitutionality of a statute is at issue, courts generally presume that a government defendant, if present, will adequately represent `the interests of all private defenders’ absent a showing to the contrary,” Gorton wrote.

For the Aquinnah tribe, it’s a blow because the Martha’s Vineyard-based tribe was hoping to get a court resolution to its ongoing dispute with the state over whether it waived federal rights to a casino.

The state’s position is that Aquinnah waived those rights in a 1987 land agreement. The tribe says it could not waive a federal right not yet granted to tribes. The Indian Gaming Regulatory Act was approved in 1988.

“Permitting the Aquinnah to intervene would eventually require adjudication of its rights under that settlement agreement and would involve evidence and legal argument wholly unrelated to the constitutionality of the Gaming Act,” Gorton wrote.

In the case of the Mashpee tribe, Gorton ruled that the tribe’s exclusivity in the region is not “legally protected,” does not affect the tribal-state compact and does not affect the tribe’s ongoing application before the federal Bureau of Indian Affairs to have land taken into trust for a Taunton casino.

“In sum, the Mashpee’s purported interests in this litigation are either not ‘legally protected’ or not impaired by a successful challenge to (the state law),” the judge wrote.

by George Brennan