In a prosecution under 18 U.S.C. §2241, for “aggravated sexual abuse by an Indian in Indian territory,” occurring in Battle Mountain, Nevada, where a victim testifies to unconsented sexual penetration and the defendant denies any sexual contact; and a Nevada case, Crawford v. State, 107 Nev. 345, 351, 811 P.2d 67, 70-71 (1991), mandates that the giving of an attempted sexual assault jury instruction under those circumstances constitutes reversible error; does the Assimilated Crimes Act, 18 U.S.C. § 13(a), or 18 U.S.C. § 1153(b) mandate that federal courts are constrained to follow Crawford and either not give the attempt instruction or be reversed if they do?

The question of whether case law viz. state substantive lesser-included offenses must be assimilated into a prosecution where the state case law prohibits the giving of the instruction, was not addressed either in Keeble v. United States, 412 U.S. 205 (1973) or in Lewis v. United States, 523 U.S. 155 (1998); and United States v. Walkingeagle, 974 F.2d 551 (4th Cir. 1992), cert. denied, 507 U.S. 1019 (1993) presents both sides of the issue. Is the Walkingeagle dissent correct as a matter of law?