Another bite of the apple and swiftboating Margaret L. Wendt

The Seneca Nation of Indians’ battle against opponents of their downtown casino was fought in two courts this past week—one a court of law, the other the court of public opinion.

The lawsuit against the downtown casino has been coordinated on behalf of a large group of individuals and citizens’ organizations by Citizens for Better Buffalo. Many individuals and some organizations contributed to the costs of the lawsuit, but the bulk of the funding has been provided by the Margaret L. Wendt Foundation. The defendants were officials of the US Department of the Interior and the National Indian Gaming Commission (NIGC); they have been represented in court by the US Department of Justice. The Senecas have also received extensive legal advice from their own attorneys.

US District Court Judge William M. Skretny ruled on July 8 that gambling in the small blue slot machine emporium now operating on the Seneca Gaming Corporation’s Michigan Avenue site and the much larger casino now in its earliest stages of construction was illegal. The ruling from the NIGC that Senecas could gamble on that land had, the judge said, been issued incorrectly. The NIGC hadn’t read the appropriate passages of the Indian Gaming Regulatory Act of 1988 (IGRA) and the Seneca Nation Settlement Act of 1990 (SNSA) correctly.

The following week, after the NIGC refused to say whether or not it was going to act on the judge’s ruling and Seneca Gaming Corporation officials said the ruling changed nothing for them so they were going to continue doing “business as usual,” attorneys for casino opponents filed a motion in Judge Skretny’s court asking him to order the NIGC to shut the Buffalo operation down and, if the NIGC continued stonewalling, to order the US marshals to do the job.

In all of this, the Seneca Nation of Indians and the Seneca Gaming Corporation were the silent defendants. Neither SNI nor SGC was named in the lawsuit. SNI was allowed by the judge to file an amicus brief, but the Nation’s involvement gets no closer than that. Their attorneys could not argue the case in court. They cannot appeal the judge’s decision. If there is to be an appeal, it must be filed by the US Department of Justice in the Second Circuit Court of Appeals, which is based in New York City.

A third bite of the apple

But SNI and its lawyers have come up with a gambit they hope will spare them the necessity (and risk) of going to the Second Circuit at all. They want, essentially, to begin the process of determining gambling eligibility anew, as if the judge had never said they were running an illegal gambling operation in downtown Buffalo, as if he hadn’t once sent the ordinance (the authorization to conduct a gambling operation) back to NIGC for serious (rather than epidermal) evaluation, and then, when NIGC refused to take him seriously, hadn’t then voided the ordinance entirely. They want, in other words, to be exempted from the judicial process by having a third bite of the apple offered them by NIGC.

This legal gambit began with a July 16 letter from Maurice Johns, Sr., president of the SNI, to NIGC chairman Philip Hogen. There had been some changes in Department of the Interior regulations about gambling on Indian lands, Johns wrote. Moreover, he said, the Seneca Nation thinks Judge Skretny’s order vacating the NIGC ordinance is reversible on several grounds. On the basis of those regulation changes and the Nation’s evaluation of Judge Skretny’s legal opinion, he asked NIGC to once again consider the Senecas’ application for an ordinance that would let them run a gambling operation in downtown Buffalo.

Six days later, on July 22, the Department of Justice, acting on behalf of NIGC, filed a motion in Judge Skretny’s court asking the judge to remand, or take back, his July 8 decision vacating the prior ordinance from NIGC—the legal opinion that made the Senecas’ gambling operation illegal. Their motion was accompanied by eight amicus documents from various SNI attorneys.

The Department of Justice was, basically, asking the judge to agree with SNI and NIGC that the new Department of Interior rules and the judge’s own errors in reading and interpreting the law carried enough combined weight and substance to render his July 8 decision meaningless.

In the event that the judge went for any of this, the remand would prevent the shutdown requested by the plaintiffs and obviate any need for the Department of Justice to appeal Judge Skretny’s ruling in the Second Circuit. It would almost be as if none the of legal actions in federal court had ever taken place.

But Judge Skretny’s July 8 decision was not based on regulations of or interpretations by of the Department of the Interior. Judge Skretny relied on two acts of Congress: IGRA, which specified which types of Indian land could host gambling operations, and SNSA, which compensated the Seneca Nation of Indians for years of underpayments by lessees of SNI land. The land the Seneca Nation of Indians bought in Buffalo, a small fraction of which was paid for with funds from SNSA, was not, the judge held, the kind of land defined as gambling-eligible in IGRA. It was Indian country under the Congressional definition of Indian country, but it was not the kind of Indian country on which a tribe or nation could set up a Class III gambling operation. SNSA defined what kind of land it was and IGRA determined whether or not gambling could occur on it. Nothing the Department of the Interior does—no change in rules and no change in procedure—can undo or alter those two acts of Congress.

What is more likely to happen is the judge will tell the Department of Justice that its interpretation of the minor rule changes at Interior aren’t sufficient to shoehorn the Senecas’ Buffalo property into the kind of property that is gambling eligible. He probably won’t comment on Maurice Johns’ report of the Nation’s evaluation of his legal abilities and acumen.

He has already announced that he expects the Department of Justice response to the plaintiffs’ motion to close the casino delivered to him by August 1, the plaintiffs’ reply to that response delivered by August 12, and that he will hear oral arguments on August 21. It is likely that his ruling on that issue will come fairly soon after the oral arguments.

The best justice that money can buy

Once he decides the motions before him, the process of appeals will begin. However he rules, the losing side is likely to appeal. That appellate process, like the legal process that has taken place thus far, will be expensive. The American legal system is designed to determine the facts and to render justice, but much of the time the side with the most money has the best chance of getting its facts heard and its version of justice delivered at the end. Sometimes you get the justice you deserve; just as or more often you get the justice you can afford.

The Senecas and their representatives in the NIGC have two sets of lawyers—the Senecas’ attorneys, paid for out of gambling profits, and the US Department of Justice. The forces trying to establish a gambling operation in Buffalo have, as they say, very deep pockets.

The plaintiffs are almost entirely dependent on support from the Margaret L. Wendt Foundation, whose investment in the case is now approaching $2 million. Without Wendt, the individuals and citizens trying to keep a gambling operation out of downtown Buffalo couldn’t possibly have afforded to have stayed in the game this far, let alone continue into the appellate round. Ordinary citizens cannot take on legal battles of this magnitude without help.

The Margaret L. Wendt Foundation, Buffalo’s second largest foundation, has, since its inception in 1955, given $61 million to improve the quality of life in the Buffalo area. The three Wendt trustees decided two years ago that the quality of life in Buffalo would be so degraded by a downtown casino they were obligated to help the individuals and organizations trying to mount a legal battle to keep that casino from ever becoming a reality. It has thus far spent nearly $2 million in the casino litigation and it is prepared to fund the appellate work.

Swiftboating Wendt

Which perhaps explains the recent attacks on the Margaret L. Wendt Foundation. The foundation and its individual directors have been attacked by bloggers and by talk radio hosts. WGRZ reporter Scott Brown noted the foundation’s support of the lawsuit and asked, “Is that a proper use of the foundation’s assets?”, a question he had never previously aired about any activity by any other Buffalo foundation.

The BuffaloPundit blog, anti-casino in the past, came out against the Wendt foundation on July 13. It’s posting for that day was headlined,“Margaret Went Foundation.” Under that was a pretty color picture of a casino at night with “Keeps Joel Rose” in the top left corner and “Up at night” in the bottom right corner. The remainder of the posting was a listing of fundable activities and grant recipients from the Wendt Foundation Web page and an attack on the foundation for its support of the lawsuit. On July 22 the site posted a photograph of Serbian war criminal Radovan Karadzic under a caption saying, “Here’s what the Butcher of Sarajevo looks like nowadays.” Under the picture was a caption saying, “Rumor has it the Wendt Foundation is paying him $1,000,000 to fight a casino in downtown Buffalo.”

Perhaps the most surprising attack on the foundation was Michael Beebe’s July 20 article in the Buffalo News, which begins innocently enough with a listing of some Wendt grantees: Buffalo Philharmonic Orchestra, Shea’s Performing Arts Center in Buffalo, Frank Lloyd Wright’s Darwin Martin House and Graycliff, the Roycroft campus in East Aurora, the Buffalo Niagara Medical Campus. The foundation has funded, writes Beebe, “hundreds of social programs through churches, the YMCA, the Boys and Girls Club, the Boy Scouts of America and the United Way. In each of the thousands of Wendt grants over the years, the philosophy has been the same: step in when government or other means of funding are not there, and do it as low-key as possible.”

Then Beebe’s tone changes: “Suddenly, though, the Margaret L. Wendt Foundation finds itself at the center of controversy.”

How, exactly, is the Wendt Foundation in the “center of controversy”? Primarily by being in this article written by Beebe, which is headlined “Wendt in the middle of casino battle: Foundation aids foes with $1.9 million.” This is a newspaper article that defines and creates its own subject, a journalistic tautology.

Who is making the charges occasioning the article? Beebe refers to them only generically: “Talk-show hosts and bloggers have criticized the foundation for the $1.9 million it has spent so far funding the lawsuit against the Seneca Nation of Indians’ Buffalo Creek Casino in Buffalo.”

Talk-show hosts? Which ones? The rational ones or the fruitcakes? The analyzers or the frothers? Since when is criticism by a talk-show host the subject of a long piece by anybody in the news section of the Buffalo News? A dozen of those criticisms are aired on Buffalo talk radio every day and the News pays them no attention at all. Why now? Beebe told me in an email that he’d “heard snippets of Sandy Beach’s show…the day the casino decision came down” and that many of the blog comments he’d seen referred to “the same July 8 Sandy Beach show, in which they said he demonized the opposition.” The Buffalo News is going after the Margaret L. Wendt Foundation because Sandy Beach kvetched about it?

Bloggers? Beebe names none of them. Search the Buffalo blogs and you’ll find a lot of comments on the casino litigation (much of it by the same few people writing the same letters again and again), but hardly any, other than BuffaloPundit, going after the Wendt Foundation.

“The Senecas,” Beebe writes, “not a part of the suit, have paid for their own attorneys as a friend of the court.”

That sentence floats in the article; it gets no clarification or explanation. Does he mean to suggest that they’re generous and friendly in this matter? Nonsense: The Senecas aren’t reaching into their pockets to underwrite legal fees just because they think the court needs help. The case the court is considering is about the legality of their casino. The money they’re paying the lawyers is money they took out of Buffalo, Niagara Falls, and Salamanca with their slot machines. Beebe’s sentence is perfectly correct in all its facts and perfectly misleading in all its implications.

He goes on: “Wendt trustees have been scorned as elitist, taking it upon themselves to protect the poor against the ills of gambling, critics say. They’ve been accused of depriving the area of jobs that a $333 million casino and hotel would bring, of putting a crimp in an already struggling local economy.”

Who has made all these accusations? Who are these “critics”? Since when does the Buffalo News publish unsupported, anonymous accusations attacking a local foundation that has never been accused of doing anything but good and working for the community’s interest?

Worse: Why does Beebe quote only one side of the casino argument? If he’s going to list these charges against casino critics, why doesn’t he also quote sources who note that most of the $333 million is money that would come out of the community and would be diverted from other community needs, and that the $333 million would be spent to create an operation the entire function of which would be to extract more money from the community?

Michael Beebe is one of the Buffalo News’ best reporters. His pieces are usually well written, straightforward, accurate, and fair. What happened this time? Was it just a bad day? Was he handed the elements of the story and told, “Write this up?” Whatever the cause, something went awry.

There are several responses to Beebe’s article on the Buffalo News Web site. Some have to do with the procedure for applications specified on the Wendt Foundation Web site. The posters question whether or not the trustees followed that procedure in the casino funding case. Exactly the same questions have been posted on the Artvoice Web site and the Speakupwny Web site. Some of the questions are by the same person hitting all the bases, like a dog walking down a street with a lot of trees along the curb; some appear under different names. All the procedural questions ignore or miss a basic point: Those procedures are for organizations coming to the Wendt Foundation with requests for money. They have nothing to do with initiatives developed by foundation itself or worked out by foundation in conjunction with other organizations. There is nothing in the bequest about the method of giving the money away; Margaret L. Wendt left that to the three trustees. The underwriting of the anti-casino lawsuit was perfectly legal and perfectly in accordance with the bequest.

Coincidence or design?

Is all of this—Scott Brown’s WGRZ story (which has no ascriptions), Michael Beebe’s Buffalo News story (which has no ascriptions), the blog posts (nearly all of them under assumed names, many of them using the same language to make the same bogus charges again and again)—mere coincidence or is it a concerted effort to put public pressure on the one significant source of funding open to the casino opponents? Is it an expression of community concern or is it, at least in part, organized and deliberate? Is it swiftboating?

The most workable definition of “swiftboating” I’ve found is on the Urban Dictionary Web site: “A political ploy whereby allegations, falsehoods, exaggerations, or distortions are publicized to discredit a person or entity and have the intended effect that public attention is drawn to the ensuing controversy about the veracity of the allegations and away from some other political embarrassment.”

That fits.

What does it take to do that kind of swiftboating? Nobody has to exercise editorial control over any of these print and digital publications to set things in motion. It takes only a few conversations, a phone call, a question here or there. It takes only one or two articles with loaded headlines citing anonymous sources making baseless charges and presenting only one side of a complex social and economic issue—and poof! The whole thing takes on a life of its own.

There’s a trial lawyer’s maxim that goes, “If the law is on your side, argue the law. If the facts are on your side, argue the facts. If neither the law nor the facts are on your side, attack the character of the witness.” Another version is: “When the law is on your side, pound the law. When the facts are on your side, pound the facts. When neither the law nor the facts are on your side, pound your opponent.”

The casino operators and their enablers lost in court. If Judge Skretny’s July 8 opinion is as solid as most observers say it is, they’re likely to lose on appeal. This suggests they have neither the law nor the facts on their side. Little surprise, then, that the Margaret L. Wendt Foundation is the target of an undeserved pounding.

Bruce Jackson teaches at UB and edits the Web journal Buffalo Report.