Cite as: 533 U. S. 353 (2001)
Opinion of the Court
land based solely on their status as state law enforcement officials," post, at 401 (opinion of O'Connor, J.). We do not say state officers cannot be regulated; we say they cannot be regulated in the performance of their law enforcement duties. Action unrelated to that is potentially subject to tribal control depending on the outcome of Montana analysis. Moreover, even where the issue is whether the officer has acted unlawfully in the performance of his duties, the tribe and tribe members are of course able to invoke the authority of the Federal Government and federal courts (or the state government and state courts) to vindicate constitutional or other federal- and state-law rights.
We must comment upon the final paragraphs of Part II of the concurrence's opinion—which bring on stage, in classic fashion, a deus ex machina to extract, from the seemingly insoluble difficulties that the prior writing has created, a happy ending. The concurrence manages to have its cake and eat it too—to hand over state law enforcement officers to the jurisdiction of tribal courts and yet still assure that the officers' traditional immunity (and hence the State's law enforcement interest) will be protected—by simply announcing "that in order to protect government officials, immunity claims should be considered in reviewing tribal court jurisdiction." Post, at 401 (opinion of O'Connor, J.). What wonderful magic. Without so much as a citation (none is available) the concurrence declares the qualified immunity inquiry to be part of the jurisdictional inquiry, thus bringing it within the ken of the federal court at the outset of the case. There are two problems with this declaration. The first is that it is not true. There is no authority whatever for the proposition that absolute- and qualified-immunity defenses pertain to the court's jurisdiction—much less to the tribe's regulatory jurisdiction, which is what is at issue here. (If they did pertain to the court's jurisdiction, they would presumably be nonwaivable. Cf. Idaho v. Coeur d'Alene Tribe of Idaho, 521 U. S. 261, 267 (1997).) And the second
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