Tester Standing Upheld in Native American Hotel Discrimination Case

RAPID CITY (LN) — U.S. District Judge Karen E. Schreier on Tuesday denied a motion to reconsider standing in a high-profile discrimination case, reaffirming that Native American plaintiffs had Article III standing despite acting as "testers" for the activist organization NDN Collective.

The ruling preserves a December 2025 jury verdict in favor of five Native American plaintiffs who sued Retsel Corporation, which operates the Grand Gateway Hotel and Cheers Sports Lounge and Casino in Rapid City. The jury found the hotel violated 42 U.S.C. § 1981 by refusing to rent rooms to the plaintiffs after they were denied service based on their race.

Retsel argued that the plaintiffs lacked standing because they were "testers" who had no intention of staying themselves, but were instead gathering evidence of discrimination on behalf of NDN Collective. The defendant cited a recent concurrence by Supreme Court Justice Samuel Alito in Trump v. CASA, Inc., arguing that federal courts cannot extend relief to individuals acting on behalf of an organization or hypothetical third parties.

Schreier rejected the argument, writing that the plaintiffs were not asserting third-party standing, but rather "first-party" standing because they were personally discriminated against. She noted that the plaintiffs testified they would have booked and used the rooms if permitted, and that their dual role as individuals and activists did not negate their personal injury.

"The Court is unwilling to impose an either-or standard on the Plaintiffs such that they either are solely individual Native people or solely NDN activists but not both," Schreier wrote, quoting a prior order. "They can be and were both and to say otherwise is to deny their identity as Native people."

The judge also dismissed Retsel's argument that the plaintiffs could not form a valid contract under South Dakota law because they did not intend to occupy the rooms themselves. Schreier noted that Retsel raised this legal impossibility argument for the first time in its motion to reconsider, which is not permitted under Federal Rule of Civil Procedure 60(b). Even if considered, she wrote, there was no reason to doubt that the actual guests would have provided the required identifying information.

The case has seen repeated litigation over the standing issue, with a previous judge noting he had "lost track" of how many times the defense had raised the argument. The jury was instructed on the issue of tester standing and implicitly rejected the defense by ruling for the plaintiffs.

Retsel had argued that Justice Alito's concurrence in CASA heightened the importance of resolving the standing issue, claiming it exposed a flaw in the court's prior "dual capacity" analysis. Schreier found that Alito's discussion of third-party standing was of universal injunctions and class actions, and did not apply to individual plaintiffs asserting their own rights.

The plaintiffs, including Sunny Red Bear, Nick Cottier, Bre Jackson, Mary Bowman, and George Betteyoun, appeared after seeing social media posts by Connie Uhre, a relative of the hotel's owner, broadcasting a "no Natives" policy. Hotel employees ordered them to leave, prompting the lawsuit.

Schreier's order denies Retsel's motion for relief pursuant to Rule 60(b), leaving the jury's verdict intact. The case is now likely to proceed to damages or enforcement proceedings.