The National Indian Gaming Commission has issued a Notice of Violation to the Seneca Nation. The wording of the violation orders the Senecas either to shut the facility down within five days, or else pay a $25,000 daily fine pending appeal.

The Senecas issued the following statement:

“The United States is still actively considering its appeal options in the case, and the commission is still reviewing the Nation’s recently submitted gaming ordinance. Decisions on those two elements of the case are likely within the next 30 to 45 days. While legal proceedings are pending before the NIGC, the Seneca Nation will continue to operate the Buffalo Creek facility. The notice of violation has no effect on the Nation’s other gaming facilities. The Nation is pleased that this aspect of the process finally gives the Nation a direct voice in the Buffalo Creek matter for the first time.

The Seneca Nation, as always, will comply with applicable rulings, but will also exercise the full scope of its rights, administratively and judicially. We are confident that the Nation’s gaming rights will be recognized on our sovereign Buffalo Creek territory for the benefit of the Western New York economy.”

Just another day in Western New York.

The Senecas have halted construction on the Buffalo Creek Casino structure. The $300 million project is already well underway and the permanent structure was slated to open in 2010.

The Seneca Gaming Commission cites the slagging economy for leading to this decision, but some point to uncertainty with respect to the lawsuit that has been filed by certain citizens and groups seeking to shut the casino operation down altogether in Buffalo.

My only question is this. Will the casino remain on Mayor Brown’s master list of Buffalo projects that he trots out to rebut any and all negative press about the city?

I know personally that the addition of a Tim Horton’s to a B-Kwik on Seneca Street is what single-handedly convinces prospective developers that Buffalo is on the rise!

Judge Skretny refused today to issue an order shutting down the Buffalo Creek casino.

The judge instead directed a federal agency — the National Indian Gaming Commission — to “carry out their congressionally mandated obligations” and decide whether the casino should be shut down…

…Today’s ruling comes as construction crews continue erecting the structural steel for the casino project on nine acres of land off Michigan Avenue east of HSBC Arena.

Attorneys for the opposition, Citizens for a Better Buffalo, and the U.S. government, which represents the National Indian Gaming Commission, were originally expected to have arguments before Skretny. But he told both sides on Aug. 15 that he would rule on their motions on or before today.

Today is also the first day that new rules by the National Indian Gaming Commission take effect, which the government says makes the Seneca land eligible for gambling.

Skretny’s anger at the government attorneys for not telling him about the new rules changes while he considered the casino’s future comes through in today’s opinion.

Citizens for a Better Buffalo, you’ll note from the caption of the decision, is not a party to the action, which again brings up the question of why the Wendt Foundation is funneling its funding of this lawsuit through the Network for Religious Communities then through non-party Citizens for a Better Buffalo.

Whatever. No one cares.

And the State, in turn, will pay the “host communities” of the Senecas’ three WNY casinos.

$57.3 million in slots revenue was sent to Albany - $2.8 million of that came from the temporary Buffalo facility. The host community for the Buffalo casino is to get over $708,000 from that. The problem is - who is the host community? Naturally, the city and county are already fighting over that issue. Sometime down the road, it’s estimated that the Buffalo facility will earn $7 million per year for the host community.

Can Brown and Collins figure out what to do with the local share without going to court? Personally, I think the city is entitled to the whole thing as the host community. In the meantime, the permanent Seneca facility is rather quickly being added to the local skyline, with about 4 stories’ worth of steel already erected.

Federal Justice William Skretny will be holding a hearing on August 21st on the issue of whether the current, temporary facility should be shut down pursuant to his July ruling. If that was to happen, one would hope that the opponents would pay a bond into court to make the Senecas whole in the event the 2nd Circuit overturns Skretny’s decision.

Robert Kresse, Trustee and Secretary of the Wendt Foundation in the Buffalo News:

Wendt’s three trustees agreed to finance the lawsuit in January 2006, and the foundation so far has funneled $1.9 million through the Network of Religious Communities, one of the plaintiffs, for legal expenses.

The trustees were unaware of the Harrah’s investment until a periodic review following their decision to fund the suit, said trustee Robert J. Kresse.

Investment advisers Groesbeck Investment Management, based in New Jersey, determined the investment choices. The trustees decided to sell because the holdings were “inconsistent” with their position on gambling in the City of Buffalo, Kresse said.

The Wendt Foundation’s 2005 form 990, signed by Trustee & Secretary Robert Kresse lists and itemizes the Harrah’s investment.

The Wendt Foundation’s 2004 form 990, signed by Trustee & Secretary Robert Kresse, lists and itemizes the Harrah’s investment.

The Wendt Foundation’s 2003 Form 990, signed by Trustee & Secretary Robert Kresse, lists and itemizes the Harrah’s investment.

That “periodic review” took place every year ’round tax time. Just so we’re clear.

I was scrolling today through the Citizens for a Better Buffalo website - which hasn’t been updated since 2007 - and found at the very bottom of a loooooong scroll this entry:

Jackson to Paladino: “What’s your interest?”
8/17/2006

In an astounding exchange of e-mails, Professor Bruce Jackson asks developer Carl Paladino why he promotes the Casino so heavily. He does not get an answer to his question. Indeed, the style of Paladino’s response suggests that he surely has something to hide. Citizen for a Better Buffalo, YOU decide. To read this apalling exchange, click here. - Ed

Here is the .pdf of Jackson’s Artvoice piece detailing his email correspondence with Carl Paladino.

Now, when Jackson attacked me, he accused me of being part of a conspiracy to “Swiftboat” the holy, sainted Wendt Foundation. Unlike with Paladino, Jackson did not put fingers to keyboard to ask me about it. That’s shoddy “journalism”, even from a prestigious SUNY Professor who earns $150,000. I have emailed Jackson a total of three times since this whole thing blew up and he has not deigned to respond to me. Typical, as Jackson doesn’t have to answer for anything he says or writes.

Note that Jackson asks Paladino:

I’m trying to figure out why you keep pushing the casino so aggressively

As he has since done with me, Jackson starts off with the assumption that anyone who in some way defends the casino or criticizes its opponents has some personal or financial interest in it. Jackson’s motives, of course, are pure and sweet and taste of honey and roses. Right?

I’m not saying Jackson has any ulterior motive, but what’s good for the goose is good for the gander. He is quick to attack those who do not share his views, yet is slow to admit his own interest in the casino battle. So, if it’s appropriate for Paladino, it’s appropriate to ask the question of Bruce Jackson (here, since he won’t respond to my emails):

I’m trying to figure out why you keep pushing casino opposition so aggressively. I’m also trying to figure out where the money goes.

Question: Does my inquiry into the spending of Wendt Foundation money somehow magically make me a supporter of the Seneca’s Buffalo Creek Casino?

Answer: Of course not.

Here is my record on the issue of the Seneca Casino.

Here is what I wrote earlier this month concerning my current indifference to the Seneca Casino in light of Skretny’s ruling:

I have to say that my thinking on the casino downtown has morphed from ignorance to opposition to indifference … So, I’m now indifferent. If it’s blocked, great. If it goes up, great. Either way, my day won’t change. But if I’m leaning in any one direction, I’d say build the damn thing already. Build it nice, build it big, and build it in such a way so as to maximize pedestrian entry and egress from the property. By cooperating with the Senecas, we can help make it a project that is integrated into its surroundings, rather than an island surrounded by a sea of useless parking.

Hardly a ringing endorsement, wouldn’t you say?

Here is what I wrote in my original “swiftboating” post about the Wendt Foundation:

The Wendt Foundation paid $2 million to fund the legal fees for the casino half-sorta-victory last week. Two million dollars. That’s a lot of scratch, and frankly I had thought that the lawyers had donated their time towards this effort. I’m taken aback that there was an expenditure for this….

…Imagine if $2 million had gone towards an actual charitable cause that actually helps the underprivileged. Although I agree wholeheartedly with the notion that a sovereign exclave should not be carved out of Buffalo’s downtown to facilitate gambling that can’t be subject to state or local taxes, I don’t care about the morality of this, and I don’t care whether it’s a “good” or “bad” deal for the city any more than I care whether the heavily subsidized, money-losing Hyatt is a “good” or “bad” deal.

But this interview between Bruce Jackson and Joel Rose pretty much underscores the fact that the whole “sovereignty” issue is a technicality that stands in the place of “we know so much better than you”. And they got $2 mill from a local charity to pay legal fees rather than an actual charitable effort.

Oh, well.

You see, for me the sovereignty and exclave was what I was most opposed to, because I thought it was a cynical work-around the state constitution.

Casino opponents? They equate criticism and questions about Wendt with casino support. My 2 year old comes up with less facile conclusions than that. Their reaction has taken many forms, but all of them have one central underlying theme, which can be summarized as:

STFU! How dare you question the Wendt Foundation?

I will tell you one thing. Through all of this, I’ve lost a great deal of respect for casino opponents and their George Bushian “not with us, you’re against us” mentality.

With apologies to Mad Magazine and Al Jaffee.

Seriously, though - what “price” are casino foes paying for “telling the truth”? That people disagree with them? That their funding is being scrutinized?

The litany of negatives that go along with a casino development in Buffalo are often weighed against the positives, and the ultimate balance is somewhat subjective. Even Esmonde acknowledges some positives from a casino project. But what’s often repeated by opponents is how the money will be taken out of the community. Really?

Aren’t the Senecas part of the “community”? Don’t they spend their money in the same places as you or I? Aren’t they Western New Yorkers just as much as Stan from Lancaster or Johnny from Niagara Falls? Haven’t the Senecas been just as economically downtrodden as any other minority?

The Senecas and their defenders don’t promote the casino as being the savior of Buffalo, so opponents’ arguments to the contrary are beside the point.

There are myriad businesses in existence in this community that are probably a net drain on society and the economy. This may just be another added to the list. So?

One of my biggest problems with the whole Seneca casino deal is that there was no public input. I’d much prefer that the state constitution is amended to permit legal, tightly regulated, taxed class III gaming in New York State. At the end of the day, however, we elected the politicians who cut this deal with the Senecas. No one elected its opponents.

The Citizens for Better Buffalo’s website has been unearthed. And here is the site for the Network of Religious Communities.

There’s been a lot of defense and pushback and, in some cases, venom thrown our way in the last couple of days over all of this, so let me pose a question.

Why, exactly, is it wrong to ask questions about the organizations and charities behind the effort to block the casino? Why is it so offensive to ask them to explain the interpersonal and inter-entity relationships, and their status and programs? All three Wendt Foundation trustees belong to (or have leadership positions) in the Citizens for a Better Buffalo. One Wendt Foundation trustee is a member of the Preservation Coalition. Funds for the battle against the casino are funneled through the Network of Religious Communities.

All we’re asking is who, why, how much, and to whom.

We all know how the Senecas get their money and why they fight.

We all know how the federal government gets its money.

This is a matter of public concern and interest, and these not-for-profit organizations and charitable foundations can’t just do whatever they want, willy-nilly, without transparency.

As a personal aside, the funniest part of all this for me is that I never would have followed up on my original post had Jackson not called me out.

Jay Tokasz did a story on the Wendt Foundation imbroglio today, and got people to call him back, evidently.

The foundation bought the Harrah’s shares in 2003 for $2.8 million, according to its 2007 tax return. The stock was sold in May 2006 for a total of $4.9 million — a 75 percent return in less than three years.

Wendt’s three trustees agreed to finance the lawsuit in January 2006, and the foundation so far has funneled $1.9 million through the Network of Religious Communities, one of the plaintiffs, for legal expenses.

The trustees were unaware of the Harrah’s investment until a periodic review following their decision to fund the suit, said trustee Robert J. Kresse.

Investment advisers, Groesbeck Investment Management, based in New Jersey, determined the investment choices. The trustees decided to sell because the holdings were “inconsistent” with their position on gambling in the City of Buffalo, Kresse said.

Some people were resorting to unfounded attacks on the foundation because the U. S. District Court determined the casino is illegal, as many anti-gambling opponents have argued all along, he added.

The Rev. G. Stanford Bratton, executive director of the Network of Religious Communities, said he was unaware of Wendt’s investment in Harrah’s, but he downplayed its significance.

“Most folks who have a retirement plan may well be invested in a casino,” said Bratton. “It’s hard for almost any of us to be pure in that sense.”

The foundation’s mission is to assist the Western New York region and confront what is harmful, and it shouldn’t be limited in those aims simply because it holds stock in a company that promotes gambling, Bratton said.

“That would say to many of us that we can never speak out,” he said.

It’s akin to a peace protester accused of hypocrisy because he pays his income taxes, which help fund a war effort. “How far do you draw this?” said Bratton.

Besides, casinos and federal agencies have huge amounts of money to invest in lawsuits, while “the people opposed have peanuts,” he said.

Without the Wendt money, opponents of the downtown casino probably would not have been able to press forward in their case against the U. S. Secretary of the Interior and the National Indian Gaming Commission.

The three trustees of the foundation, who are paid six figures for 140 hours of work per year, were unaware of the three-year investment in a casino conglomerate? That stretches credulity. Chris states in comments:

If the trustees of the Wendt Foundation who earn ~$144K per year for ~140 hours of work are unaware as to where the assets of the $120MM foundation are invested, they have patently vacated their fiduciary responsibilities to the trust and should step down.

As to your query about my investment portfolio, I have no investments in pharmaceutical interests as I advised my financial planner to focus my money on defense and telecom stock while dabbling in foreign currencies, muni bonds, and commodities. I am active in the maintenance of my portfolio as anyone with an ounce of financial expertise should be.

Managing the foundation and its investments is half of the trustees’ job. The other half is deciding whom to give it to.

Also, I have no idea who makes up CACGEC or Citizens for Better Buffalo, or other groups involved, so how am I to know what their ability is to fund this lawsuit? There’s no transparency there whatsoever. The Senecas, at least, have to file all sorts of stuff with the government so there’s transparency on their part.

It’s akin to a peace protester accused of hypocrisy because he pays his income taxes, which help fund a war effort. “How far do you draw this?” said Bratton.

No, it’s not. You have a legal obligation to pay your income taxes and can be prosecuted by the federal government if you don’t. Wendt has no legal obligation to invest in Harrah’s over a three-year period, and most certainly could have informed its investment advisors that it did not want to invest in industries that run counter to its mission.

Wendt’s money was paid to the Network of Religious Communities. I think the people are entitled to see exactly to whom, and how much money from the Wendt Foundation was paid to fund this lawsuit.

The foundation has an endowment of more than $140 million and gives away about $6 million per year, mostly to support the local arts and culture, and the needs of the poor, elderly and disadvantaged.

That amount, Kresse said, will only grow as the foundation matures, unlike the casino deal, which will never contribute to the city’s tax base and will end up draining the local economy and taking money from those who can least afford it.

“We haven’t destroyed lives in the process,” he added. “We have helped people.”

Has Wendt audited where its money has been spent? There’s no question that Wendt has helped people throughout WNY during its 50+ year existence. The question here is, why are high-priced Albany lawyers receiving this money, who else is receiving it, and how much?

Oh, and Channel 2? You’re dead to me.

The opponents of the casino applied to Judge Skretny to force the casino to be shut down, in the wake of his ruling earlier this month.

You’ll recall that the ruling found that the casino property was sovereign “Indian land”, but that the National Indian Gaming Commission had acted arbitrarily and capriciously in approving class III gaming on the site.

Well, if the NIGC acted arbitrarily and capriciously, it would make some sense to remand the case back to NIGC for a re-evaluation of its 2007 decision on gaming, no?

The case seems to revolve around one major issue — whether the federal judiciary or the executive branch should be the ultimate arbiter in this case.

“A remand to the NIGC is the only constitutionally appropriate option available in these circumstances,” stated Laurence H. Tribe, a Harvard Law School professor serving as chief legal consultant for the Seneca Nation.

It is the executive branch, not the federal judiciary, that is empowered to execute the laws, Tribe added. That includes exercising the law-enforcement discretion that Congress delegated to such executive agencies.

This is made more critical due to a recent (July 16th) re-application the Senecas made for gaming permission, and a new rule that is to be in effect in late August. The government’s papers are here. The Senecas’ proposed amicus brief is here.

They’re arguing that the regulations that Judge Skretny ruled on are about to change, and that the whole case should be sent back to the executive branch for re-evaluation under the new regs.

Which will attract more visitors to Buffalo?

“Bifocal intellectuals” looking at architecture and our “sense of place”?

or

The Buffalo Creek Casino?