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Court as effecting an implicit repeal of all former gathering rights as well. 40/
These facts present strong evidence that the Hawaiian Government did not represent only the native Hawaiians 41/ and was not the "single landowning entity," since enactment of this legislation had the effect of terminating the native Hawaiians' right of use and occupancy (the essence of aboriginal title) of most of the Government and Crown lands. In addition, it was provided by statute that any Hawaiians using Government land without Government authorization could be prosecuted for trespass. 42/ Yet if the Hawaiian Government had been the "single landowning entity," native Hawaiians would, of necessity, have had a right to use and occupy Government lands without any authorization, and therefore should have been specified as exempt from application of this statute. Finally, native tenants who had long occupied lands deemed to belong to the Government (that is, lands that had never been awarded to anyone by the Board of Land Commissioners) were held to have neither title to nor the right of possession of these lands, but, in effect, were only trespassers thereon. 43/ If the Hawaiian Government had been the "single landowning entity" for aboriginal title purposes, these native tenants would not have been considered trespassers. 44/
The same commenter who states that the Hawaiian Government and the native Hawaiians were one and the same entity for aboriginal title purposes, also expresses the view that the native Hawaiians were "citizens of an aboriginal nation with internal and external attributes of sovereignty." 45/ The juxtaposition of these views presents a conceptual problem. The legal fiction of aboriginal title was created to meet the need of various European sovereigns, who claimed fee title to the lands of North America (and later the United States as the successor sovereign), to acknowledge the possession of much of these lands by various Indian tribes. 46/ Thus, when an Indian tribe holds aboriginal title to certain lands this means that the tribe has a right of use and occupancy of such lands, while the sovereign (an entity separate and distinct from the members of the tribe viewed as a group or the tribal government) holds the fee title to said lands. Accordingly, if these two views are correct and the Hawaiian Government was, in fact, simultaneously both the single landowning entity and the sovereign, then such a state of facts is diametrically opposed to the concept of aboriginal title, which rests upon the existence of two separate entities (the native group that is the single landowning entity and the sovereign).
The second test for aboriginal title is that the single landowning entity had actual and exclusive use and occupancy of the specified lands (here, the Government and Crown lands) for a long time before title was extinguished. 47/ Actual and exclusive use and occupancy for a long time prior to 1893 or 1898 48/ and continuing up to 1893 or 1898—the alleged dates of extinguishment 49/—must be established by clear and definite proof. 50/ Because such a large portion of the Crown and Government lands was patented or sold to individuals (either native Hawaiians or foreigners) or leased to foreigners by 1893, actual and exclusive use for a long time up to that date cannot easily be shown. Courts require that occupancy be actual and not "merely asserted." 51/ Moreover, in making a determination as to the area that was actually and exclusively used and occupied, the courts will take into account a loss of population of the landowning entity prior to the alleged date of extinguishment of aboriginal title. 52/ Between 1853 and 1896 the number of native Hawaiians dropped from 70,036 to 31,019. 53/ Even before 1893, therefore, the trend was a
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