¶20 (concurring) — I agree with the majority that petitioners are immune from suit under the doctrine of tribal sovereign immunity. I write separately, though, because I do not agree that this result is mandated by either Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 754, 118 S. Ct. 1700, 140 L. Ed. 2d 981 (1998), or North Sea Products, Ltd. v. Clipper Seafoods Co., 92 Wn.2d 236, 595 P.2d 938 (1979). While Kiowa Tribe clarifies that tribal sovereign immunity extends to a tribe’s off-reservation and commercial activities, it does not resolve whether tribal immunity extends to a tribal corporation. And contrary to the majority’s assertion, this court has *117never directly addressed this complex issue.4 I would take this opportunity to articulate a standard for determining whether a tribal corporation enjoys tribal immunity from suit. As noted by the dissent, there are several factors that other courts considering this question have found useful. I would adopt the reasoning of these courts and hold that the tribe’s immunity extends to the petitioners in this case.
Madsen, J.*117DISCUSSION
Standard of Review
¶21 The majority begins its analysis by setting forth the standard of review for personal jurisdiction. Majority at 111. The dissent correctly notes that the trial court dismissed the complaint under CR 12(b)(1) for lack of subject matter jurisdiction, inferring that remand for further proceedings is necessary because the trial court did not rule on the sovereign immunity issue. Thus, both the majority and the dissent fail to recognize that tribal sovereign immunity is an issue of subject matter jurisdiction, requiring dismissal under CR 12(b)(1). See Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994) (“[sovereign immunity is jurisdictional in nature”); Lewis v. Norton, 424 F.3d 959, 961 (9th Cir. 2005) (courts lack subject matter jurisdiction to determine claims barred by tribal sovereign immunity); E.F.W. v. St. Stephen’s Indian High Sch., 264 F.3d 1297, 1302-03 (10th Cir. 2001) (“[tfribal sovereign immunity is a matter of subject matter jurisdiction, which may be challenged by a motion to dismiss under Fed.R. Civ.R 12(b)(1)” (citation omitted)); Pan Am. Co. v. Sycuan Band of Mission Indians, 884 F.2d 416, 418 (9th Cir. 1989) *118(affirming Fed. R. Civ. P. 12(b)(1) dismissal based on tribal sovereign immunity). The fact that the trial court granted Colville Tribal Services Corporation’s (CTSC) CR 12(b)(1) motion on the basis of CR 82.5(a) (trial court lacks subject matter jurisdiction over claims falling within the exclusive jurisdiction of a tribe), rather than on sovereign immunity grounds, is of no consequence. We may affirm the trial court’s CR 12(b)(1) ruling on any appropriate grounds supported by the record, including those not articulated by the trial court. State v. Norlin, 134 Wn.2d 570, 582, 951 P.2d 1131 (1998).
¶22 Had the majority set forth the appropriate standard of review for a CR 12(b)(1) dismissal for lack of subject matter jurisdiction, it would have become apparent why it is unnecessary to remand this case for fact finding on whether CTSC is a tribal entity that enjoys the tribe’s immunity. The dissent incorrectly treats the ruling as a CR 12(b)(6) dismissal for failure to state a claim, which may be sustained only if it appears beyond doubt “that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Dissent at 128. The dissent incorrectly states that we must presume the truth of Wright’s allegation that Colville Tribal Enterprise Corporation (CTEC)/ CTSC are not tribal entities and reverse and remand for further proceedings. Dissent at 131.
¶23 Dismissal under CR 12(b)(1) and CR 12(b)(6) are analytically distinct, implicating different principles, burdens of proof, and legal consequences. The former involves whether the court has the power to adjudicate the claim, while the latter is a disposition on the merits. State v. Lane, 112 Wn.2d 464, 468, 771 P.2d 1150 (1989). Unlike a CR 12(b)(6) dismissal, a CR 12(b)(1) dismissal has no preclu-sive effect, is immediately appealable, and may be based on evidence outside of the pleadings. 2 James Wm. Moore, Moore’s Federal Practice f 12.30[2], [3], at 12-36.1, 12-37, *11912-42 (3d ed. 2006).5 The procedural safeguards that attach to a CR 12(b)(6) motion are of limited application to a CR 12(b)(1) motion.
f 24 A challenge to subject matter jurisdiction under CR 12(b)(1) may be either facial or factual. 2 Moore, supra, ¶ 12.30[4], at 12-39. In a facial challenge, the party challenging jurisdiction asserts that the plaintiff’s allegations on their face are insufficient to establish the court’s jurisdiction. A plaintiff confronting a facial challenge enjoys many of the procedural protections afforded under CR 12(b)(6). Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). Thus, a trial court must assume the factual allegations in the complaint are true, construing them liberally in favor of the plaintiff, and will not look beyond the face of the complaint to determine jurisdiction. 2 Moore, supra, ¶ 12.30[4], at 12-40.
¶25 In a factual challenge such as the one made here, the moving party disputes the truth of allegations by submitting declarations or other evidence for the court’s consideration. Exch. Nat’l Bank of Chi. v. Touche Ross & Co., 544 F.2d 1126, 1131 (2d Cir. 1976); 2 Moore, supra, ¶ 12.30[4], at 12-39 to -40. Under CR 12(b), a motion that includes evidentiary materials outside the pleadings converts to a summary judgment motion only when dismissal is sought under CR 12(b)(6). However, a factual challenge brought under CR 12(b)(1) is functionally similar to a summary judgment motion. Thus, when faced with a factual challenge to subject matter jurisdiction, the nonmoving party may not rest on the mere assertion that factual issues exist. Exch. Nat'l Bank, 544 F.2d at 1131. “Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought *120before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Savage v. Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). A trial court need not accept the plaintiff’s allegations as true. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Rather, the plaintiff must come forth with competent proof of jurisdictional facts. Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986) (in ruling on Fed. R. Civ. P. 12(b)(1) motion, trial court may not rely on conclusory assertions and hearsay statements). Courts generally permit the nonmoving party to discover facts relevant to the jurisdictional issue, particularly when those facts are peculiarly within the control of the moving party. Williamson v. Tucker, 645 F.2d 404, 414 (5th Cir. 1981).
¶26 Unlike with a summary judgment motion, a trial court has discretion to evaluate for itself the merits of jurisdictional claims and may order an evidentiary hearing for that purpose.6 2 Moore, supra, ¶ 12.30[3], at 12-37. In such cases, a reviewing court defers to the trial court’s factual determinations and reviews its legal conclusions de novo.
¶27 Here, CTSC submitted declarations and other evidence to demonstrate that it was a tribal entity, sharing the tribe’s immunity. In reply, Wright submitted competing declarations and exhibits. On review, this court may consider the evidence presented in support of, and opposition to, the CR 12(b)(1) motion, viewing the evidence in the light most favorable to the nonmoving party. See Williamson, 645 F.2d at 413 (when trial court does not resolve disputed facts *121in granting a dismissal based on lack of subject matter jurisdiction, appellate review is limited to determining whether ruling is correct based on the undisputed facts).
¶28 The dissent would remand this matter for fact-finding on whether CTSC enjoys the tribe’s sovereign immunity. I agree that, in some cases, fact finding may be necessary to determine whether sovereign immunity applies. See, e.g., Parker Drilling Co. v. Metlakatla Indian Cmty., 451 F. Supp. 1127, 1132-35 (D. Alaska 1978) (questions of fact precluded summary judgment over whether a tribe owned an airport and aviation company in its governmental capacity or in its corporate capacity); Nasuti v. Scannell, 906 F.2d 802, 808 (1st Cir. 1990) (trial court may hold evidentiary hearing to resolve immunity-related factual disputes). However, this is not such a case. At trial and before the Court of Appeals, Wright did not dispute the relevant facts relating to CTSC’s tribal affiliation and organization structure.7 He argues for the first time before this court that fact finding is needed to resolve the jurisdictional issue. Because the record contains undisputed facts *122that are dispositive of the sovereign immunity issue, remand for fact-finding is unnecessary.
Tribal Sovereign Immunity
¶29 As a matter of federal law, Indian tribes, as sovereigns, are immune from lawsuits. Kiowa Tribe, 523 U.S. at 754. This immunity may be lifted only by an act of Congress or by express tribal waiver. Id.; N. Sea Prods., 92 Wn.2d at 241. And the immunity extends not just to tribal government functions, but to tribal commercial enterprises, regardless of where they occur. Kiowa Tribe, 523 U.S. at 754-55.8
¶30 While neither the United States Supreme Court nor this court has formulated a test for determining whether tribal immunity extends to tribe-created business corporations, other jurisdictions have addressed this issue. In Ransom v. St. Regis Mohawk Education & Community Fund, Inc., 86 N.Y.2d 553, 658 N.E.2d 989, 992, 635 N.Y.S.2d 116 (1995), the New York Court of Appeals summarized the relevant case law as follows:
Although no set formula is dispositive, in determining whether a particular tribal organization is an “arm” of the tribe entitled to share the tribe’s immunity from suit, courts generally consider such factors as whether: the entity is organized under the tribe’s laws or constitution rather than Federal law; the organization’s purposes are similar to or serve those of the tribal government; the organization’s governing body is comprised mainly of tribal officials; the tribe has legal title or ownership of property used by the organization; tribal officials exercise control over the administration or accounting activi*123ties of the organization; and the tribe’s governing body has power to dismiss members of the organization’s governing body.
¶31 The court noted, however, that the most important considerations are “whether the corporate entity generates its own revenue, whether a suit against the corporation will impact the tribe’s fiscal resources, and whether the subentity has the ‘power to bind or obligate the funds of the [tribe].”’ Id. (alteration in original) (quoting Altheimer & Gray v. Sioux Mfg. Corp., 983 F.2d 803, 809 (7th Cir. 1993)). The court stated that “[t]he vulnerability of the tribe’s coffers in defending a suit against the subentity indicates that the real party in interest is the tribe.” Id.
¶32 The majority incorrectly assumes that Kiowa Tribe renders irrelevant the purpose for which a tribal entity was created as a basis for determining the applicability of sovereign immunity. Kiowa Tribe declined to distinguish between a tribe’s governmental and commercial activities in defining the scope of tribal immunity. Kiowa Tribe, 523 U.S. at 753-55 (citing Okla. Tax Comm’n v. Citizen Band of Potawatomi Tribe of Okla., 498 U.S. 505, 111 S. Ct. 905, 112 L. Ed. 2d 1112 (1991) (noting Congress’s repeated approval of the immunity doctrine as a means for tribes to advance their economic interests)). However, Kiowa Tribe does not prohibit inquiry into a tribal entity’s purpose as a means of determining whether the tribal entity acts as an arm of the tribe so that its activities are those of the tribe. In Trudgeon v. Fantasy Springs Casino, 71 Cal. App. 4th 632, 639, 84 Cal. Rptr. 2d 65 (1999), a California court noted that the purpose of creating the tribal entity is important because “it is possible to imagine situations in which a tribal entity may engage in activities which are so far removed from tribal interests that it no longer can legitimately be seen as an extension of the tribe itself.” Id. (holding that a casino is cloaked with tribe’s sovereign immunity).
¶33 In this case, the Court of Appeals was influenced by the fact that CTEC and CTSC may not bind the tribe to any of their obligations or debts without the tribal business council’s express authorization. However, because the im*124munity the tribe enjoys would prevent it from being held legally responsible for any of the corporations’ obligations in any event, this is not the end of the inquiry. Any liability imposed on the corporations could still affect the tribe’s finances. As the majority related in its statement of the case, 25 percent of CTSC’s net income is distributed to the tribe. Anything, therefore, that reduces CTSC’s net income reduces the tribe’s income as well. And, while the corporations may have insurance, insurance is not unlimited, nor will it cover all circumstances, such as intentional misconduct. Immunity of CTSC directly protects the sovereign tribe’s treasury and thus serves one of the primary purposes of sovereign immunity. See Allen v. Gold Country Casino, 464 F.3d 1044, 1047 (9th Cir. 2006) (citing Alden v. Maine, 527 U.S. 706, 750,119 S. Ct. 2240, 144 L. Ed. 2d 636 (1999) (sovereign immunity essential to protect State treasuries from the potentially devastating effect of private suits for money damages)).
f 34 Moreover, CTEC specifically is “wholly-owned by the Tribes,” and its shareholders are the members of the Colville Business Council, “acting on behalf of the membership of the Confederated Tribes of the Colville Reservation.” Clerk’s Papers at 392. The shareholders appoint the board of directors. CTEC, in turn, wholly owns CTSC. Id. at 411. The CTEC board elects the CTSC board, at least two members of which must be members of the tribe. Id. at 412. Furthermore, under the Colville tribal code, the specific purpose of corporations established by the council is to provide for the economic welfare of the tribe and its members. Id. at 350. Such corporations are expressly “considered to be governmental agencies and instrumentalities of the Tribes,” with their officers and employees “considered officers and employees of the Tribes, . . . carrying out responsibilities imposed upon the Council for economic advancement of the Tribes and their members.” Id. To this end, the tribal code states that tribal corporations “shall. . . be entitled to all of the privileges and immunities enjoyed by the Tribes; including but not limited to, immunities from *125suit in federal and state courts.” Id. While the tribe found it “necessary for the management of the economic development of tribal resources to be separated from other governmental functions of the Tribes and placed within the responsibility of persons or entities different from the Council,” id. at 350, it nonetheless clearly established its corporations “for [the] economic advancement of the Tribes,” id. at 349, with corporate revenues to “be used to fund governmental programs for the protection and security of tribal members and residents of the reservation.” Id. at 350. Directors and officers of tribal corporations “owe a standard duty of loyalty to both the corporation by which they are employed and to the Confederated Tribes of the Colville Reservation and its members.” Id. at 354.
¶35 The corporations’ articles are similar. Both state that, while management of the corporations is separate from the council’s daily governmental oversight, the corporations “shall be considered at all times to be a part of the Tribes and to be carrying out essential tribal governmental functions and responsibilities as set out in the Constitution of the Tribes.” Id. at 390, 409. The assets acquired by the corporations “shall be owned by the corporation for the benefit of the Tribes.” Id. at 402, 425. And both corporations generally are to “act on the Tribes’ behalf with respect to income-producing enterprises owned by the Tribes” and to “generate surplus revenue for the benefit of the Tribes and to provide necessary and essential governmental services within the Colville Reservation.” Id. at 391-92, 410.
136 Relying on similar factors, courts in other cases have found tribal business corporations cloaked with sovereign immunity. As noted above, in Trudgeon, the court found important language in the tribe’s resolution stating that establishment of the casino was necessary to the tribe’s quest for self-determination. The court noted that “[c]ases which have not extended immunity to tribal enterprises typically have involved enterprises formed ‘solely for business purposes and without any declared objective of promoting the [tribe’s] general tribal or economic develop*126ment.’ ” Trudgeon, 71 Cal. App. 4th at 640 (second alteration in original) (quoting Dixon v. Picopa Constr. Co., 160 Ariz. 251, 257, 772 P.2d 1104 (1989)). And in Gavle v. Little Six, Inc., 555 N.W.2d 284 (Minn. 1996), the Minnesota Supreme Court noted language in the corporation’s charter stating that the corporation was formed for the purpose of improving the business, financial, and general welfare of the tribe. Id. at 294. While those cases had the additional factor of federal Indian gaming statutes recognizing gaming as a means of promoting Indian economic self-sufficiency, see, e.g., Trudgeon, 71 Cal. App. 4th at 642, that factor is not necessarily decisive. For any business enterprise established with the express purpose of promoting tribal economic development, the extension of immunity arguably furthers “federal policies intended to promote Indian tribal autonomy.” Gavle, 555 N.W.2d at 294.
f 37 Similar to the cases mentioned above, I would hold that the petitioners here are entitled to the protection of sovereign immunity. In light of the purposes for which the tribe founded CTSC, and the tribe’s ownership and control of its operations, there can be little doubt that it functions as an arm of the tribe. Thus, CTSC enjoys the tribe’s immunity from suit.
¶38 The dissent suggests that a broad application of sovereign immunity to tribal corporations would be harmful to tribes because it will deter others from entering into business relationships with tribes. Dissent at 130 n.13. In response, the majority states that a bright line rule extending sovereign immunity to all tribal corporations will aid tribes by dispelling the uncertainty about whether sovereign immunity applies to a particular tribal entity. Majority at 114 n.3. It is not within the province of this court to decide whether sovereign immunity will help or hurt tribes. That is a decision for Congress and the tribes. The doctrine of tribal sovereign immunity is a matter of federal law over which Congress has plenary authority. Kiowa Tribe, 523 U.S. at 759. As the Supreme Court made clear in Kiowa Tribe, Congress has repeatedly indicated its continued sup*127port for the doctrine, and a court should be particularly cautious of substituting its policy judgment for that of Congress in this area. Id. (“Congress is in a position to weigh and accommodate the competing policy concerns and reliance interests. The capacity of the Legislative Branch to address the issue by comprehensive legislation counsels some caution by us in this area. Congress . . . ‘has always been at liberty to dispense with such tribal immunity or to limit it.’ ” (quoting Okla. Tax Comm’n, 498 U.S. at 510)).9
¶39 Finally, it is worth pointing out that the majority’s result does not leave individuals such as Mr. Wright without a remedy. Under the CTEC policy manual, Wright could have filed a grievance or sought relief through the Tribal Employment Rights Office. Or, if unsatisfied, the Colville Tribal Civil Rights Act, Colville Tribal Law and Order Code 1-5-1, allows for recovery of damages under a policy of insurance.
Fairhurst, J., concurs with Madsen, J.
In North Sea Products, we held that tribal immunity precluded the issuance of a writ of garnishment against the Lummi Indian Seafood Company, an operating division of an enterprise chartered by the Lummi Indian Business Council. However, we did not expressly address the issue of immunity of tribal corporations. Rather, the court (and the parties) assumed the tribe’s immunity extended to the seafood company: at issue was whether tribal immunity includes immunity from garnishment actions and whether the tribe waived its immunity. N. Sea Prods., 92 Wn.2d at 239-42.
Our version of CR 12(b) mirrors its federal counterpart. Accordingly, we may look to federal authorities for guidance in interpreting CR 12(b). See Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 829 P.2d 1099 (1992) (construing CR 11 in light of Fed. R. Civ. P. 11); Am. Disc. Corp. v. Saratoga W., Inc., 81 Wn.2d 34, 37, 499 P.2d 869 (1972) (construing CR 24 in light of Fed. R. Civ. P. 24); McGugart v. Brumback, 77 Wn.2d 441, 444, 463 P.2d 140 (1969) (construing CR 26 in light of federal discovery rules as interpreted in other jurisdictions).
An exception exists when the merits of the jurisdictional issue are inextricably tied to the merits of the claim itself, in which case a court generally should either apply a summary judgment standard or permit the plaintiff to develop the relevant jurisdictional facts at trial. Valentin v. Hosp. Bella Vista, 254 F.3d 358, 362-65 (1st Cir. 2001) (court may defer resolution of jurisdictional issue until trial, where merits of claim inextricably linked to jurisdictional facts); Cupit v. United States, 964 F. Supp. 1104, 1107 (W.D. La. 1997) (court must apply summary judgment standard to factual findings on jurisdictional issue when intertwined with merits); 2 Moore, supra, ¶ 12.30[3], at 12-38.
In his motion opposing dismissal, Wright argued sovereign immunity did not apply because CTSC conducted its activities off-reservation, engaged in commercial rather than governmental activities, registered as a foreign corporation under the laws of Washington, and “appeared to be a regular construction company.” Clerk’s Papers at 268-69. As correctly noted by the majority, none of these facts has any bearing on the issue of CTSC’s sovereign immunity. Wright also disputed the legal significance of two provisions of the CTSC’s/CTEC’s incorporation documents: one declaring the intent to separate the tribe’s commercial and governmental activities, and the other providing a conditional power to “sue and be sued.” Contrary to the dissent, the import of these provisions may be determined as a matter of law. A “sue and be sued” provision that authorizes a tribal entity to consent to suit does not constitute a waiver of immunity absent evidence that a tribal official has invoked that power. Ransom v. St. Regis Mohawk Educ. & Cmty. Fund, Inc., 86 N.Y.2d 553, 658 N.E.2d 989, 995, 635 N.Y.S.2d 116 (1995); see also Hagen v. Sisseton-Wahpeton Cmty. Coll., 205 F.3d 1040, 1044 (8th Cir. 2000) (authorization in tribal college’s charter to “waive any immunity from suit” did not itself effect a waiver); Chance v. Coquille Indian Tribe, 327 Or. 318, 963 P.2d 638 (1998) (authorization in tribal ordinance for tribal officials to consent to suit is not itself a waiver of immunity); Dillon v. Yankton Sioux Tribal Hous. Auth., 144 F.3d 581, 583 (8th Cir. 1998) (sue and be sued clause that merely authorizes an entity to waive sovereign immunity is not self-executing); Robles v. Shoshone-Bannock Tribes, 125 Idaho 852, 876 P.2d 134, 136 (1994) (sue and be sued clause does not mean suit against tribal corporation may proceed in state rather than tribal court). Here, Wright points to nothing other than the language of the “sue and be sued” provision itself as evidence of waiver.
Unlike this case, in Kiowa Tribe the tribe itself was sued in state court to enforce a promissory note executed in the tribe’s name. The majority misconstrues Kiowa Tribe as holding that all tribal corporations enjoy sovereign immunity. The United States Supreme Court has not yet set forth a standard for determining when tribal immunity extends to tribal corporations, a fact recognized by other courts faced with post -Kiowa Tribe assertions of tribal immunity. Johnson v. Hurrah’s Kan. Casino Corp., No. 04-4142-JAR, 2006 U.S. Dist. LEXIS 7299, at *18 n.6 (D. Kan. 2006); Trudgeon v. Fantasy Springs Casino, 71 Cal. App. 4th 632, 636, 84 Cal. Rptr. 2d 65 (1999).
In response to Kiowa Tribe, then-United States Senator Slade Gorton proposed two bills that would have waived tribal immunity for most types of lawsuits. American Indian Contract Enforcement Act, S. 2299, 105th Cong. § 2299 (1998) (conferring district court jurisdiction and waiving sovereign immunity for contract claims against tribes after noting that “the assertion of tribal immunity serves as a deterrent to economic development”); American Indian Tort Liability Insurance Act, S. 2302,105th Cong. § 2302 (1998) (requiring tribes to maintain tort liability insurance and waiving sovereign immunity for claims by tort victims in order to protect “ ‘those who are unaware that they are dealing with a tribe, who do not know of tribal immunity, or who have no choice in the matter’ ” (quoting Kiowa Tribe, 523 U.S. at 758)). The bills did not pass.