Appeal from the United States District Court for the District of Arizona. D.C. No. CR-95-00290-EHC. Earl H. Carroll, District Judge, Presiding.
Before: Herbert Y.c. Choy, Thomas M. Reavley,*fn** and Edward Leavy, Circuit Judges. Opinion by Judge Leavy.
Nathaniel Earl Keys timely appeals the district court's affirmance of his conviction, following a bench trial before a magistrate Judge, for assault on his daughter in violation of 18 U.S.C. §§ 113(d)*fn1 and 1152. Keys argues that the district court lacked jurisdiction because the victim, who was one-fourth Indian, was not an enrolled member of any Indian tribe. Keys also argues that the Federal Enclaves Act, 18 U.S.C. § 1152, is an unconstitutional attempt by Congress to apply a general criminal code to the activities of non-Indians in Indian Country. We affirm Keys' conviction.
FACTS AND PRIOR PROCEEDINGS
In June 1992, Nathaniel Earl Keys had a daughter. The daughter's mother is an enrolled member of the Colorado River Indian Tribe and her enrollment certificate lists her as one-half Indian blood. Keys is African-American.
At the time of the daughter's birth her mother was not living with Keys, although both the mother and Keys lived on the Colorado River Indian Tribe Reservation. The daughter lived with her mother for the first eighteen months of her life. Sometime in November 1993 the mother voluntarily gave custody of her daughter to Keys. Keys later established paternity and was granted formal custody of his daughter in tribal court. In June 1994, the mother was granted visitation rights of one 24-hour visitation period each week. On the second such visit, the mother discovered "bruises, scabs, and marks" on her daughter's bottom and called Tribal Social Services and her tribal probation officer to report possible child abuse. The mother and her probation officer took the daughter to the Indian Health Service Hospital to be examined by her treating physician. The probation officer took the daughter to the Tribal Social Services Department and placed her under the protective custody of the Tribe. She also filed a petition with the Tribe for a "child in need of care."
In March 1995, Keys was charged in an information with assault on "Jane Doe, an Indian, by striking beating or wounding," in violation of 18 U.S.C. §§ 113(d) and 1152.*fn2 Keys pled not guilty and a bench trial was held on May 17, 1995. At the Conclusion of the trial, Keys moved for judgment of acquittal and to dismiss the indictment for lack of jurisdiction. The motion for judgment of acquittal was based, in part, on the assertion that the government had failed to prove that the victim was an Indian. In support of the motion to dismiss, it was asserted that, under United States v. Lopez, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (1995), exercise of jurisdiction based on the Federal Enclaves Act, 18 U.S.C. § 1152, was unconstitutional.
On May 17, 1995, the magistrate Judge orally denied the motions and found Keys guilty of simple assault. On May 19, 1995, the magistrate Judge entered written supplemental findings and Conclusions, finding that:
1. JANE DOE was approximately two years old on June 14, 1994.
2. JANE DOE's mother is an enrolled member of the Colorado River Indian Tribe ("CRIT").
3. JANE DOE has one-quarter Colorado River Indian blood.
4. JANE DOE is not an enrolled member of CRIT, but is ...