¶40 (dissenting) — The majority commits several errors in deciding this case which leads to an erroneous conclusion. The trial court decision dismissed the complaint pursuant to a CR 12(b)(1) motion, concluding it lacked subject matter jurisdiction.10 The Court of Appeals *128reversed that decision, and petitioners did not challenge that issue here.11 To the extent this case presents an issue involving tribal immunity, the factual record is insufficient for an appellate court to make this determination. This case should be remanded to the trial court for further proceedings.
C. Johnson, J.*128¶41 The record before the trial court, the Court of Appeals, and this court is comprised of Christopher Wright’s complaint and the memoranda, competing declarations, and exhibits the parties submitted in support of and in opposition to petitioners’ CR 12(b) motion. The trial court made no findings of fact and only briefly mentioned the issue of sovereign immunity. Verbatim Report of Proceedings at 27 (Feb. 23, 2004) (“Then there’s a very compelling argument, I believe, as well that — for sovereign immunity here.”).
f 42 When reviewing a trial court’s dismissal pursuant to CR 12(b)(1),12 we are not fact finders. When factual discrepancies exist, we must resolve them in the plaintiff’s favor because no dismissal for failure to state a claim under CR 12(b)(6) should be granted unless it appears, beyond doubt, that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Berge v. Gorton, 88 Wn.2d 756, 759, 567 P.2d 187 (1977). In this case, we have no factual findings, only the contested, unproven, competing declarations and their accompanying documents. The parties disagree on the factual significance of *129these documents and their application to the corporations and the tribe.
¶43 The contradictory nature of the parties’ factual representations is evident by comparing the documents discussed by Wright and the Court of Appeals to the documents highlighted by the petitioners. The Court of Appeals relied on portions of the corporations’ articles of incorporation, which prohibit the corporations from entering into any agreements on the tribe’s behalf, pledging the tribe’s credit, disposing of or encumbering personal property of the tribe, securing any loans or incurring any indebtedness binding the tribe, or otherwise binding or obligating the tribe. Wright v. Colville Tribal Enter. Corp., 127 Wn. App. 644, 655-56, 111 P.3d 1244 (2005). Wright notes that the corporations filed with the Washington Secretary of State as foreign, for-profit, regular corporations doing business in Washington. He also points out that the corporations’ organizing documents identify as goals the maximizing of shareholder wealth and separation from tribal government.
¶44 The petitioners contradict Wright’s assertions and rely on provisions of the Colville Tribal Code, which state that the corporations are established to provide for the economic welfare of the tribe and its members. The petitioners point out that the Colville Tribal Code defines the corporations as “agencies and instrumentalities of the Colville Tribal Government,” gives the corporations the constitutional authority of the tribe to “develop the economic resources of the Tribe,” and states that the corporations “have the same privileges and immunities as the Tribe.” Clerk’s Papers (CP) at 349-50. The petitioners highlight the tribe’s significant financial dependence on the corporations. Additionally, provisions of the corporations’ articles of incorporation state that the corporations are charged with carrying out essential tribal government functions and responsibilities, that the assets acquired by the corporations are owned by the corporations for the benefit of the tribe, and that the corporations act on behalf *130of the tribe with respect to income-producing enterprises owned by the tribe. CP at 391-92, 410.
¶45 Even if we decided the record was sufficient to review this question, we should remember that the concept of tribal sovereign immunity is not a novel one. Neither party challenges the rule that sovereign immunity protects the governmental and commercial activities of tribes, absent an express waiver of immunity by the tribe or Congressional abrogation. Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754, 118 S. Ct. 1700, 140 L. Ed. 2d 981 (1998). The parties disagree in their briefing on the factual question of whether the petitioner corporations are tribal entities and thereby protected by sovereign immunity as commercial activities of the tribe.
¶46 Courts have adopted various factors in deciding whether corporations are tribal entities and are entitled to immunity.13 The Minnesota Supreme Court has condensed the inquiry into the following three core factors: (1) whether the business entity is organized for a purpose that is governmental in nature, rather than commercial; (2) whether the tribe and the business entity are closely linked in governing structure and other characteristics; and (3) whether federal policies intended to promote Indian tribal autonomy are furthered by the extension of immunity to the business entity. Gavle v. Little Six, Inc., 555 N.W.2d 284, 294 (Minn. 1996).
¶47 The corporations in this case recognize 11 factors as relevant: (1) whether the entity is organized under the tribe’s laws or constitution, (2) whether the entity’s purposes are similar to or serve those of the tribal government, *131(3) whether the entity’s governing body is composed mainly of tribal officials, (4) whether the tribe has legal title to or owns property used by the entity, (5) whether tribal officials exercise control over the administration or accounting activities of the organization, (6) whether the tribe’s governing body has the power to dismiss members of the organization’s governing body, (7) whether the entity generates its own revenue, (8) whether a suit against the entity will affect the tribe’s finances and bind or obligate tribal funds, (9) the announced purpose of the business entity, (10) whether the entity manages or exploits tribal resources, and (11) whether protection of Indian assets and tribal autonomy will be furthered by extending immunity to the entity. Pet. for Review at 15 (citing Runyon v. Ass’n of Vill. Council Presidents, 84 P.3d 437, 440-41 (Alaska 2004); Ransom v. St. Regis Mohawk Educ. & Cmty. Fund, Inc., 86 N.Y.2d 553, 658 N.E.2d 989, 993, 635 N.Y.S. 2d 116 (1995); Gavle, 555 N.W.2d at 294; Dixon v. Picopa Constr. Co., 160 Ariz. 251, 772 P.2d 1104, 1110 (1989)).
¶48 Without any established factual record, however, it is difficult to ascertain which factors even apply to this case. Wright asserts that the corporations are separate from the tribe and therefore not tribal entities, which must be presumed true under our standard of review. We should remand to the trial court for a factual determination of whether the corporations constitute tribal entities and are thereby protected by sovereign immunity.14
Chambers and J.M. Johnson, JJ., concur with C. Johnson, J.
The majority notes that the trial court decision was based on CR 82.5. That rule provides: “Where an action is brought in the superior court of any county of this state, and where, -under the Laws of the United States, exclusive jurisdiction over the matter in controversy has been granted or reserved to an Indian tribal court of a federally recognized Indian tribe, the superior court shall, upon motion *128of a party or upon its own motion, dismiss such action pursuant to CR 12(b)(1), unless transfer is required under federal law.” CR 82.5(a). Nothing in the record establishes that the claims in this case fall under the exclusive jurisdiction of the Tribe.
In the petition for review, petitioners state, “[r]eview is sought only as to tribal sovereign immunity, not as to the holding regarding subject matter jurisdiction under Montana v. United States, 450 U.S. 544[, 101 S. Ct. 1245, 67 L. Ed. 2d 493] (1981).” Pet. for Review at 1 n.1.
CR 12(b) provides: “Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross claim, or third party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter .. ..”
Courts have also noted the tribal interest in maintaining the distinction between tribal entities and separate corporate entities in the context of sovereign immunity. The Arizona Supreme Court observed that since “[n]on-Indians will undoubtedly think long and hard before entering into business relationships with Indian corporations that are immune from suit,” extending sovereign immunity to corporations merely associated with tribes “may well retard a tribe’s economic growth.”Dixon v. Picopa Constr. Co., 160 Ariz. 251, 772 P.2d 1104, 1112 (1989). The majority’s broad application of sovereign immunity, without an established factual record, fails to acknowledge the importance of maintaining an ascertainable distinction between tribal entities and separate corporate entities.
To the extent that other jurisdictional issues involve separate factual inquiries, such as whether the corporations waived tribal sovereign immunity and whether state employment laws apply, they may also be decided by the trial court on remand.