The ruling preserves a December 2025 jury verdict that found Retsel liable under 42 U.S.C. § 1981 after plaintiffs were ordered to leave the hotel in response to a social media post alleging a "no Natives" policy.
Retsel argued that the individual plaintiffs—Sunny Red Bear, Nick Cottier, Bre Jackson, Mary Bowman, and George Betteyou—were merely "testers" who lacked a personal intent to stay in the rooms they attempted to book.
The defendant also cited Justice Alito’s concurrence in Trump v. CASA, Inc., claiming it undermined the plaintiffs' standing by suggesting they were acting solely on behalf of the NDN Collective rather than asserting personal rights.
Judge Schreier held that the plaintiffs were not asserting third-party standing but were instead asserting first-party standing as individuals who were personally discriminated against.
The court noted that the jury was explicitly instructed on the "tester" defense and implicitly rejected it by ruling in favor of all Native American plaintiffs on their § 1981 claims.
Schreier further rejected Retsel’s argument that forming a contract was legally impossible under South Dakota law because the plaintiffs did not intend to occupy the rooms themselves.
The judge concluded that the plaintiffs had pleaded sufficient facts to show they would have entered into a contract had they not been thwarted, and that the actual guests would have provided the required identifying information.
Retsel’s motion also raised a new argument regarding SDCL § 34-18-21 that had not been presented in prior pleadings or summary judgment motions, which the court declined to consider.