Native attorney and activist Chase Iron Eyes believes that the Dakota Access Pipeline’s (DAPL) attack on his ancestral homeland justified his and other water protector’s establishment of The Last Child Camp on private DAPL property in February. The Morton County Sheriff’s Department disagreed and charged him with felony riot incitement and misdemeanor trespass in March.

The Associated Press (The AP) and The Bismarck Tribune reported yesterday (October 24) that the Standing Rock Sioux tribe member will present the “necessity defense” in a preliminary hearing on November 3. The judge will determine if he can use that justification duing his February trial. Cornell University’s Legal Information Institute defines the necessity defense as an argument that justifies a criminal act “because it will prevent the occurrence of a harm that is more serious.” Iron Eyes argues that he defied state orders to evacuate anti-DAPL protest sites because of the harm the pipeline causes to Native lands.

“Given the Dakota Access Pipeline’s imminent threat to my tribe’s and my family’s only water supply, I ultimately had no choice but to resist on the front lines,” Iron Eyes told The Tribune. “Pipelines spill all too often, and our efforts to stop DAPL’s construction were thwarted by President Trump’s illegal intervention to cancel the environmental impact statement that the Army Corps of Engineers had decided to prepare.”

Iron Eyes’ argument is connected to that of the Lakota People’s Law Project, where he works as lead counsel. The organization argues that the DAPL and oil pipelines like it violate land use treaties established by the U.S. government and Native tribes. The AP notes that this defense is rarely successful. Pipeline protesters in Montana, North Dakota and Washington attempted the defense, but judges reportedly rejected their claims. A Minnesota judge who allowed four pipeline protesters to use the defense told The AP that it only applies “in emergency situations where the peril is instant, overwhelming and leaves no alternative but the conduct in question.” 

The Tribune says that Iron Eyes’ riot trial is set for February 8. If convicted, he could spend up to five years behind bars.