Greg Malone Gene Malone v. Bureau of Indian Affairs

Greg and Gene Malone are members of the Wintun Indian Tribe in California. After they were denied higher education grants by the Bureau of Indian Affairs (“BIA”), they initiated this action in federal district court, seeking a declaration that the BIA’s administration of the Higher Education Grant Program violated the Administrative Procedure Act (“APA”), and an order enjoining the BIA from refusing to consider them eligible for grants.

In a decision dated December 8, 1992, the district court granted summary judgment to the BIA on the ground that, although the Malones are more than one-quarter Indian by blood and thus eligible for grants pursuant to the only published eligibility criterion, the Ninth Circuit invalidated that criterion in Zarr v. Barlow, 800 F.2d 1484 (1986). The district court concluded that the Zarr decision, interpreting the interplay of a number of federal statutes that provide for the assistance of Indians, mandates that the BIA make grant eligibility contingent on membership in a federally recognized tribe, and precludes any other basis for determining eligibility.

On appeal, the Malones do not claim that the Wintun Tribe is federally recognized.…