There are three very different terms that float around in our legal history. Most famously today s. 35 of the Constitution Act, 1982 refers to the term "aboriginal" as in "aboriginal peoples". This term is the most expansive of terms and includes Inuit and Metis as well as the people we have traditionally referred to as "Indians". This category also likely includes "non-status" Indians -- a concept that needs no explanation.
In the Constitution Act, 1867 there is no discussion of the term "aboriginal" but there is mention of the "Indians". Section 19(24) assigns exclusive legislative authority in respect of the "Indians and Lands reserved for the Indians" to the Federal Parliament (as opposed to the legislatures). As is typically the case with the Constitution Act, 1867 no explanation is provided for the term "Indians".
Outside of the Constitution, the Indian Act defines a group of people known as the "Indians" who are informally referred to as "status Indians". For all practical purposes this definition amounts to "people who are on a list as of a certain date and are added to that list in accordance with certain rules". The rules amount to being descended from enough people on the list and not too many people off the list. There have been other definitions of "Indian" in the Indian Act over the years and the proper definition of who is an "Indian" remains a fruitful source of conflict.
It has long been known that the group of people who are status Indians is not the same as the group of people who are Indians for the purpose of the Constitution Act, 1867. In an old case called Re Eskimo the Supreme Court of Canada rejected the idea that the Federal government's definition of who is a status Indian covered everyone who was an Indian. Instead the Court held that Eskimos (as the Inuit were then called by non-aboriginal society) were "Indians" within the meaning of s. 91(24) of the Constitution Act, 1867.
So why does any of this matter? Section 35 is fundamentally different than s. 91(24): section 35 speaks to protecting aboriginal "rights" from both levels of government. Section 91(24) speaks to Federal jurisdiction. This jurisdiction is historically tied to an idea that one level of government is charged with giving special protection to the Indians. This protection manifests itself in a range of rights, programs and services which are administered by the Federal government or are provided for in Federal legislation. As a practical matter these protections serve as an extra layer of insulation between the assimilative forces intrinsic in provincial approaches to service delivery and land and resource management (for example, land use on reserve cannot be regulated by local municipal governments). On a social level the labeling of people as "status Indians" becomes an informal way of distinguishing "real" Indians from interlopers.
As can be imagined this categorization carries with it a huge amount of baggage. Non-status Indians (usual persons who are of "Indian" descent who have lost status due to the application of the Indian Act rules) resent the fact that they are frozen out of Federal programs and funding and are, in many ways, isolated from the communal benefits associated with bands. Indian bands are resentful of attempts to lump them with non-status Indians because the Federal government will only fund them for their "status" members while, as a practical matter, they are expected to provide services to their non-status members. This problem becomes particularly intense when we increasingly see children of status members losing their status despite being full community members in every practical sense of the word while funding and services are provided to status person who are living on-reserve but are not band members.
To understand the reaction of many groups to the change of name of the Department requires understanding the debate as to how to solve what everyone acknowledges is an untenable situation. One approach (heavily favoured by non-status people and some Indian bands and organizations) is to expand the definition of status Indian (or more generally Federal responsibility) to encompass all "true" Indians. These people will be removed from provincial programs and services under this model and placed into the parallel Federal system as well as receive the benefits of any additional Federal programs. The alternate approach favoured (or believed to be favoured) by the Federal government is to maintain a narrower definition of status Indian and over time remove all of these individuals from Federal protection and programs.
Thus when many Indian groups who cherish their special relationship with the Federal government see a move away from "Indian affairs" to "Aboriginal Affairs" they see (rightly or wrongly) language being used that suggests a move to sever that special relationship. By contrast non-status organizations, such as the Congress of Aboriginal People, see the move as signalling a recognition of broader Federal responsibility.
