Diane Zarr v. Earl Barlow, Director, Office of Indian Education Programs, Bureau of Indian Affairs

Diane Zarr is an enrolled member of the Sherwood Valley Band of Porno Indians, a federally recognized Indian tribe. She is certified by the Bureau of Indian Affairs (“BIA” or “the government”) as having ’/fed degree Indian blood. She applied to the BIA for Indian higher education grants, but her application was denied because she does not meet the eligibility criterion under 25 C.F.R. § 40.1 (1986), which provides that an applicant must possess an Indian blood quantum of at least one-quarter degree to be eligible. After exhausting her administrative remedies, she brought this action in the district court to compel the agency to authorize the grant. Zarr contends that the application of the regulation to her violates her right to equal protection and that the regulation was invalidly promulgated. The district court granted summary judgment for the government.

We are confronted with the question of the present validity of an administrative regulation’s eligibility standard, when the statute under which the standard was purportedly promulgated has been amended to provide a more inclusive standard of eligibility. We hold that the BIA’s continued restrictive application of the…