In Keeble v. United States (1973) 412 U.S. 205, a Native American defendant requested the jury be instructed on simple assault, a lesser included offense of the charged crime of assault with intent to commit serious bodily injury on an Indian reservation. (Id. at p. 206.) Under the Major Crimes Act of 1885 (18 U.S.C. 1153), only the latter offense was listed as a crime for which the defendant could be prosecuted. (Keeble, supra, at p. 206.) Following an analysis of the legislative intent behind the Major Crimes Act of 1885, the Supreme Court concluded the defendant was entitled to a jury instruction on simple assault. (Keeble, supra, at pp. 207, 213.) The Supreme Court reached that conclusion as a matter of statutory interpretation rather than constitutional right. The court reasoned: "The Major Crimes Act of 1885 expressly provides that Indians charged under its provisions 'shall be tried in the same courts, and in the same manner, as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States.' In the face of that explicit statutory direction, we can hardly conclude that Congress intended to disqualify Indians from the benefits of a lesser offense instruction, when those benefits are made available to any non-Indian charged with the same offense." (Keeble, supra, 412 U.S. at p. 212, ) The Supreme Court next discussed the constitutional implications if it had ruled that the Major Crimes Act of 1885 precluded instruction on the included offense of simple assault: "Moreover, it is no answer to petitioner's demand for a jury instruction on a lesser offense to argue that a defendant may be better off without such an instruction. True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction--in this context or any other--precisely because he should not be exposed to the substantial risk that the jury's practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction. In the case before us, for example, an intent to commit serious bodily injury is a necessary element of the crime with which petitioner was charged, but not of the crime of simple assault. Since the nature of petitioner's intent was very much in dispute at trial, the jury could rationally have convicted him of simple assault if that option had been presented. But the jury was presented with only two options: convicting the defendant of assault with intent to commit great bodily injury, or acquitting him outright. We cannot say that the availability of a third option--convicting the defendant of simple assault--could not have resulted in a different verdict. Indeed, while we have never explicitly held that the Due Process Clause of the Fifth Amendment guarantees the right of a defendant to have the jury instructed on a lesser included offense, it is nevertheless clear that a construction of the Major Crimes Act to preclude such an instruction would raise difficult constitutional questions. In view of our interpretation of the Act, those are questions that we need not face." (Keeble, supra, 412 U.S. at pp. 212-213.)