The federal government has a unique trust responsibility for American Indian (AI) tribes and Alaska Native (AN) villages and their members. Federal guidance provides for AI and AN property exemptions from MA estate recovery for certain assets and resources.
The following AI and AN income, resources and property are exempt from MA estate recovery:
1. Certain AI and AN income and resources (such as interests in and income derived from tribal land and other resources currently held in trust status, and judgment funds from the Indian Claims Commission and the U.S. Claims Court) that are exempt from Medicaid estate recovery by other laws and regulations
2. Ownership interest in trust or nontrust property, including real property and improvements, that is:
a. located on a reservation (any federally recognized Indian Tribe’s reservation, Pueblo, or Colony, including former reservations in Oklahoma, Alaska Native regions established by Alaska Native Claims Settlement Act and Indian allotments) or near a reservation as designated and approved by the Bureau of Indian Affairs of the U.S. Department of the Interior; or
b. for any federally recognized tribe not described in (a), located within the most recent boundaries of a prior federal reservation
• one or more relatives (by blood, adoption, or marriage), including Indians not enrolled as members of a tribe and non-Indians, such as spouses and stepchildren, that their culture would nevertheless protect as family members;
• a tribe or tribal organization; or
• one or more Indians.
3. Income that was left as a remainder in an estate, was derived from property protected in item 2 above, and was collected either by an Indian or by a tribe or tribal organization and distributed to Indian(s), as long as the person can clearly trace it as coming from the protected property
4. Ownership interests left as a remainder in an estate in rents, leases, royalties, or usage rights that are related to natural resources (including extraction of natural resources or harvesting of timber, other plants and plant products, animals, fish, and shellfish) and are resulting from the exercise of federally protected rights, and income that was collected either by an Indian or by a tribe or tribal organization and distributed to Indian(s) and that was derived from these sources as long as the person can clearly trace it as coming from protected sources
5. Ownership interests in or usage rights to items not covered by items 1–4 above that have unique religious, spiritual, traditional, or cultural significance, or rights that support subsistence or a traditional lifestyle according to applicable tribal law or custom
Protection of nontrust property described in (a) and (b) is limited to circumstances in which the property passes from an Indian (as defined in United States Code, title 25, section 1603, paragraph (13)) to:
You may recover the following income, resources and property from the estates of American Indians and Alaska Natives:
1. Ownership interests in assets and property, both real and personal, that are not described in section I, items 1–5.
2. Any income and assets left as a remainder in an estate that do not derive from protected property or sources described in section I, items 1–5.
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